The record label EMI has sued video site Vimeo for copyright infringement, alleging that the company goads users to post video clips of themselves lip-synching songs by musicians like Billy Idol
and KT Tunstall.
"Vimeo has extensive knowledge of the use of copyrighted recordings on its Web site, and Vimeo encourages and induces its users to copy, adapt, and upload copyrighted
recordings," EMI alleges in the lawsuit, filed last week in federal court in New York.
The complaint alleges that Vimeo not only displays "lip dubs," but also advises users to create the clips by combining videos of
themselves with high-quality copies of songs. "This ensures that the music that accompanies the 'lip dub' video, which virtually always is copied directly from a commercial recording, is high-quality,
of substantial volume, and is the focal point of the audiovisual work," the lawsuit alleges.
Vimeo declined to comment, except to say that it "respects the intellectual-property rights of
others." EMI likewise declined to comment.
The legal issues appear unsettled. On one hand, the federal Digital Millennium Copyright Act safe harbor provisions say that sites are immune from
liability, provided they remove copyrighted material upon request. That law recently led a federal judge in California to dismiss Universal Music Group's copyright lawsuit against video-sharing site
Veoh.
But the U.S. Supreme Court also ruled that the peer-to-peer service Grokster could be liable for infringement for inducing users to upload and download pirated material.
In addition,
it's not clear whether lip dubs infringe copyright or are a fair use of song. Attorney Martin Schwimmer says that one factor that could weigh against fair use is that the lip dubs generally include
the entire song.
But Electronic Frontier Foundation lawyer Corynne McSherry says that a use can be transformative even when it incorporates the entire work. "If you can argue persuasively that
your purpose requires the whole thing, that's okay," she says. "I've seen plenty of lip dubs that struck me as extremely creative and transformative and that put things in an entirely new
perspective."