The flagged video can still be watched in the US, but not in some other countries. The video in question is called "Sleeping Dogs: Smells like 2 dogs napping." Katy and Yuki rest on the back couch barely awake despite the Nirvana song "Smells Like Teen Spirit" blaring in the background. It lasts all of 69 seconds. The Nirvana song is not played in full. In fact, there's 40 seconds of one part of the song and another 29 seconds of the tail end of the song. In other words, what I would think would constitute fair use.
I revisited the issue today when I uploaded a video of the girls playing football at the dog park. All the YouTube site says upfront is:
Important: Do not upload any TV shows, music videos, music concerts, or commercials without permission unless they consist entirely of content you created yourself.
Okay. I didn't do that. Still not satisfied, I read the "Copyright Tips page" where I got some really cheesy advice: "The way to ensure that your video doesn't infringe someone else's copyright is to use your skills and imagination to create something completely original." Feeling like a 5th grader, I clicked on the "What about fair use" link to 'learn more' and there I went straight to "http://chillingeffects.org/fairuse/" where I finally learned something from the George Washington University School of Law after reading their answers to some of the FAQs.
In the event that the owner of the copyright to the Nirvana song (would that be Courtney Love?) takes us to court for copyright infringement, the court would weigh 4 factors. Now, nevermind that I doubt she'd bother taking the time to take us to court over 69 seconds of Newfies sleeping to Smells Like Teen Spirit, but if she or whoever actually owns the copyright did, the court would consider:
1) THE PURPOSE AND CHARACTER OF THE USE
Basically how new, novel or creative is the creation in question? The more it is something novel, the more likely there's no infringement.
2) THE NATURE OF THE COPYRIGHTED WORK
Basically, if it's a work of art as opposed to a piece of fact, the more protection the copyright holder has. I think in this case, Smells Like Teen Spirit is a true work of art. I'd be busted if this were all that mattered. But it's not, which brings us to factor 3.
3) THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED
The less used, the more it falls under fair use. This is like the difference between a fleeting expletive and a whole freaking song littered with F-bombs, which I happen to not find offensive, but that's another blog post subject entirely. "If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair." Here I think that since I used only 23% of the song (69 our of 300 seconds) and that it was not the heart of the song, I would have a leg to stand on, especially in light of factor 4.
4) THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK
This one basically says that it isn't fair use if my use doesn't circumvent the copyright owner's ability to exploit his or her original work. Basically, since no one in their right mind, or even their severely deranged mind, is going to download the newfie sleeping video just so they can listen to Nirvana's Smells Like Teen Spirit and avoid having to buy the song themself, then it's fair use. My use is not a direct market substitute for the original work.
Furthermore I might point out that when visitors to this blog watch the newfies sleeping video, or find it on YouTube and watch it there, they are actually encouraged to buy the Nirvana song where they can do so with a mouse click. In essence, the copyright holder is getting free advertising and anyone who doesn't own the song and is reminded of how much they like it when they see the video, may be compelled to buy it. Meanwhile, I earn nothing from the video whatsoever.
Thus, my use of 69 seconds of Smells Like Teen Spirit as background noise in the Sleeping Dogs video constitutes "Fair Use."
I rest my case.
And, here's the football video, for anyone who is ready for some lighter entertainment. If you look closely you'll see a tiny Yorkshire terrier who wanted to play with the big girls. I think he was smaller than a football.
Football at the Park