Is EMI as stupid as Constantin Film as it enforces takedown of the “Newport” video parody?

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The Newport State of Mind parody video has been phenomenally successful. A parody of Jay-Z and Alicia Keys’ Empire State of Mind (original embedded below), it is funny, ironic and a great tribute to the 2009 track.

So were EMI stupid to issue a take down notice?

I’m not so sure

Perhaps surprisingly, I am not convinced that EMI are being as stupid as Constantin Film when they took down the Downfall parodies.

The Downfall parodies were an Internet meme where users took a short clip of  maybe four minutes from a movie that ran for 155 minutes and then added captions. The captions covered everything from iPhone App rejections to Susan Boyle’s surprising second place in Britain’s Got Talent. It was a short extract, likely to benefit from the parody defence in the US and fair use in many other countries. it was a golden marketing  and revenue opportunity that Constantin threw away.

It’s not quite the same for EMI

In a thoughtful post, IP lawyer Steve Kuncewicz (working for Halliwells but writing in a personal capacity as all lawyers do), sets out the areas where EMI might be claiming for copyright infringement by Newport:

• the video
• the sound recording of the song
• the lyrics
• the music

Well, I’m no lawyer, but the video is very similar style, while the sound recording and lyrics are totally different. But the music – that’s just been lifted lock, stock and barrel.

Bang to rights

YouTube’s basic legal defence is that it acts as soon as it is informed of an infringement. EMI Music Publishing claimed there was a music copyright infringement and asked YouTube to take the Newport parody down. YouTube did so. It’s hard to think that YouTube has done anything wrong here.

But has EMI? That’s the million-dollar question.

Unlike with Downfall, this was no extract: the video runs for the same length and has the same melody. To compare it to Downfall, perhaps you have to imagine someone taking the whole of Downfall except the soundtrack, redubbing it and releasing the “re-imagined” movie commercially in the cinema. It’s hard to call that fair use.

(Of course, that’s not quite true, since the filmmaker M-J Delaney shot the Newport video with entirely new footage and new performers Alex Warren and Terema Wainwright, but I hope you get my point.)

Legally, it looks to me as if they were within their rights. Morally, many fans and users who enjoyed the parody may not agree. But to me, it’s the financial question that is most interesting.

Could EMI have turned this to Jay-Z’s advantage

Right now, EMI (and, by extension, Jay-Z) are looking pretty heavy-handed. A talented filmmaker makes an homage of their music and they squelch it, quickly. That can’t be good for their brand.

The official video on YouTube has 55 million views. The spoof had had about two million, I think. You could argue that, if YouTube was selling ads against it, then EMI should get its share to give to the original artists. That’s 2 million views x $10 CPM (that’s an incredibly generous assumption and probably out by a factor of 10) $1 CPM (still a generous assumption given low YouTube fill rates) x 55% (YouTube keeps the rest) = $11,000 $1,100. So EMI could have claimed a share of that advertising revenue.

But EMI’s real issue is that it is worried that by letting someone put out the entirety of its tune on YouTube, it would not be able to sell that track again. What if an advertiser chose to use the parody not the original? Would it stop users downloading the iTunes version? What is the financial impact?

My thoughts

I don’t think this is as clear-cut as Downfall. If I were EMI, I would have contacted director M-J Delaney and said “Oi! You’re using our copyright, on many levels. We love your work, and would like to promote through all our Jay-Z channels. But since it is so derivative, and you are climbing on the shoulders of our talent, we want a percentage (50%? 75%? 80%?).”

Everyone wins. A relatively obscure director gets his her 15 minutes of fame (and the chance to capitalise on it), as do the performers. Jay-Z shows he is able to take a joke. EMI makes more money.

For all I know, that’s what happened. And either the director said no or EMI’s lawyers couldn’t move first. The takedown could even be a negotiating tactic (albeit a heavy-handed one).

In the end, if I were EMI, I would be trying my damnedest to have a strategy that says “when someone does something cool and viral with some of our content, we want a piece of it, because that’s good for everybody”, not “Shut it down. Right the hell NOW!”

But that’s not how big companies work. Which is why, I fear, they may be doomed.

* * *

Oh, you probably want to see it – here’s a new upload to YouTube. It may be gone by the time you read this, though, depending on how assiduous EMI’s lawyers are.

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