I have never heard of Hatsune Miku before taking this class. However, the more I read about this, the more I’m surprised that software platforms similar to Vocaloid haven’t taken off yet in America, or maybe they have and I’m not aware of it. The concept of the software seems pretty appealing. In addition to a plethora of musical instruments that a user would find in GarageBand, a singing voice is available for the user to literately create songs without requiring any musical talent whatsoever. Strange as it sounds, maybe this is the reason why this type of software is still relatively unknown in this country. Think about it. If a user can create and post a song on the Internet, vocals and all, using nothing but a software package, what’s to stop that person from using that software to take a popular song and reproduce it as the audio track of a “fanvid” (Trombley, 2007), labeling it as his/her tribute to the artist of that song? Currently on YouTube, you can find videos of Hatsune Miku performing 80s hits such as Belinda Carlisle’s Heaven is a Place on Earth and Rick Astley’s Never Gonna Give You Up in English.
I wonder how the Recording Industry Association of America feels about this. In The Art of Immersion, Rose (2011) describes how far the RIAA goes to protect the works of their artists by mentioning the video of a 13-month old boy dancing across his parents’ kitchen floor with a Prince song playing very softly in the background. After the boy’s mother posted the video on YouTube, an attorney for the Universal Music Group demanded that YouTube take down the video on the grounds that it was an unauthorized performance of Prince’s music, despite the fact that the song was not the focal point of the video.
Fanvid creators argue that their work does not harm the commercial interests of the original artists, but actually provides free advertising for the artists (Trombley, 2007). Therefore, they believe that their work should fall under the criteria of fair use. One could think using a Vocaloid-created version of a song instead of the original recording would not violate any copyright laws. However, the fact remains that a Vocaloid user would still be using lyrics and music that were originally composed by someone else. Trombley (2007) points out that under most circumstances, the audio used in fanvids would indeed infringe copyrights. According to the Copyright Act of 1976, there are four factors to be considered to determine fair use:
1. Purpose and Character of Use
Granted, the use of the song in the fanvid is mostly noncommercial, but the images included in the video portion of the fanvid could advance or change the interpretation of the song (Trombley, 2007).
2. Nature of the Work
Trombley (2007) also mentions that “lyrics, although not explicitly fictional, seem to qualify as the sort of work which lies closer to the core of copyright protection than primarily factual works do” (p. 674).
3. Amount and Substantiality of the Portion Used in Relation to the Work as a Whole
Portions of the song may be edited out or rearranged in the fanvid, but usually the entire song is included. Therefore, it is expected that the heart of the original work is copied into the fanvid (Trombley, 2007).
4. The Effect of the Use upon the Potential Market for or Value of the Work
Courts could likely find that a fanvid can serve as an effective substitute for its audio source, especially if the fanvid incorporates most or all of the original work. Therefore, it could inflict market harm (Trombley, 2007).
It will be interesting to see if more English performances of Hatsune Miku will turn up in the future and if these performances will be challenged by the RIAA.
Rose, F. (2011). The Art of Immersion: How the digital generation is remaking Hollywood, Madison Avenue, and the way we tell stories. New York: W. W. Norton & Company, Inc.
Trombley, S. (2007). Visions and Revisions: Fanvids and Fair Use. Cardozo Arts & Entertainment Law Journal, 25(2), 647-85. Retrieved from OmniFile Full Text Mega database