The dispute dates to this June, when Lessig posted a clip of a 49-minute presentation, “Open,” to YouTube. Lessig, a copyright expert and author of the book “Remix,” included excerpts of amateur video clips in the presentation, which he originally gave at a 2010 Creative Commons conference in Seoul. Among them were clips, created by consumers around the world, showing people dancing to Phoenix's “Lisztomania.”
Lessig obviously thought the clips were a clear example of fair use. Liberation Music believes otherwise. The company said Lessig's lecture infringed copyright in the song “Lisztomania” and demanded that YouTube remove the presentation.
Lessig protested, prompting Liberation Music to threaten to sue the law professor for copyright infringement.
Lessig took the threat seriously enough to go to court and seek a declaratory judgment against Liberation Music. He is asking for an order stating that his use of the clips is protected by fair use principles, an order banning Liberation Music from seeking to take down the lecture in the future, and damages.
The lawsuit alleges that Lessig included the clips in order to illustrate how people are engaging in “call and response” online. The “Lisztmania” phenomenon began when the YouTube user who goes by the name “avoidant consumer” posted a clip meshing scenes from movies with “Lisztomania” playing in the background. Other YouTube users then created “copycat” videos.
Lessig's complaint says he used a total of five clips, ranging from 10 seconds to 47 seconds long.
The “illustrative use of the clips in question, particularly in the context of a public lecture about culture and the Internet, is permitted under the fair use doctrine and, therefore, does not infringe the defendant’s copyright,” the complaint says.
The lawsuit adds that Lessig's purpose was “non-commercial and highly transformative” -- two factors that courts consider when deciding fair use questions.
“Whereas Phoenix’s original purpose was presumably to entertain music fans, and to make money doing so, Professor Lessig’s purpose was educational,” the lawsuit says.