A ‘Fair Use’ Fight with a Copyright Lawyer?

Written by Cynthia Trinh
Lessig Lecture

Image courtesy of

Lawrence Lessig is no ordinary copyright lawyer. He is one of the most prominent copyright lawyers in the country. Lessig is well-known for his strong activism for Internet freedom.  He believes that the Internet should be a free and public space with absolutely no restrictions on the freedom of speech guaranteed by the First Amendment.  So when a record label threatened to sue him, you can rest assured that Lessig would not go down quietly.

Lessig is a law professor at Harvard School of Law.  He posted a lecture of his on YouTube that used a clip of music from the French band Phoenix (a popular indie-dance band).  Lessig likes to use Phoenix’s song titled “Lisztomania” to show how other artists have remixed the song with images from the iconic movie “The Breakfast Club” (these remixes went viral and inspired other similar videos).  When Lessig posted his lecture on YouTube for his students to watch, the record label that owns the rights to Phoenix’s work, Liberation Music, based out of Melbourne Australia, sent a letter to Lessig demanding that he take down the content from YouTube or face a lawsuit.

phoenix-band- GQ

Image courtesy of Jurvetson via Flickr

YouTube uses an algorithm that scans videos to find copyrighted material.  Once the technology finds copyrighted material, the user will receive a message stating that the video must be taken down, and in many cases, YouTube will automatically take down the video.  When the technology scanned Lessig’s video, it found that there was copyrighted material included in the video (the clip of Phoenix’s song), and that is when Liberation Music sent out a demand to Lessig to take down the content.  But this automated system does not differentiate between content that has been illegally posted and content that is legal.

Although the clips that Lessig used are copyrighted and owned by Liberation Music, his use is legal because of the doctrine called “fair use.”  The fair use doctrine permits a limited use of the copyrighted material without acquiring permission from the rights holder for purposes such as: commentary, criticism, news reporting, research, teaching, scholarship, and parody/satire.  Lessig was clearly using the copyrighted material for the purposes of teaching.  Once Liberation Music discovered the mistake, it withdrew its demand against Lessig.  But Lessig is determined to stop the use of this automated technology and has brought suit against Liberation Music for threatening to bring a fraudulent claim without proper basis.

For people who don’t know copyright law as extensively as Lessig, a demand letter from a big record label can be scary.  Most people fear a lawsuit, so they will comply with the demand, but what they don’t realize is that their use might be legal.  By using this automated technology to send demand letters out, copyright holders are not distinguishing between legal content and illegal content.  This means that people who want to use copyrighted content in legal ways will be deterred from creating any works, and that in turn stifles creativity and is in effect a censorship on content.  This “chilling effect” of legitimate and protected speech is detrimental to the progress of arts and science.

Lessig hopes that bringing this suit will set a precedent that will persuade copyright holders from using this type of technology.

About the author

Cynthia Trinh

Cindy Trinh is an intellectual property attorney based in New York City and Contributor to She is a Creative Relations Agent for the international company Production Paradise, the premiere international resource and online directory for the visual media industry specializing in commercial, advertising, and fashion. She connects the world's best photographers and filmmakers with agencies and magazines around the globe. Cindy is also an Assistant Manager to musician Earl Slick, the guitarist for rock legend David Bowie for the last 40 years. Slick has collaborated with John Lennon, Yoko Ono, The Ramones, The Rolling Stones, and Robert Smith, and was the guitarist for New York Dolls, to name just a few. Cindy is passionate about photography and is heavily involved in New York's art scene. She is the Social Media & Marketing Coordinator for The New York Photo Review, a publication of critical reviews and listings of fine art photography shows in New York. She curates content and photography for all the social media sites, writes about the latest developments in art and photography, and attends gallery openings and events to cultivate relationships with galleries and artists.

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