A group of friends gathered after work a few years ago to record what may be now the most popular performance of Harvey Danger's "Flagpole Sitta." In a video that has since been viewed more than 2 million times on Vimeo, the 30 or so friends took turns lip-syncing, dancing and then ultimately falling to the floor as a group at the song's end.

Sean Nelson, the frontman for Harvey Danger, wrote to Vimeo's co-founder Zach Klein: "That Flagpole Sitta video made me incredibly happy, just when I thought there was NOTHING that could make me listen to that song again. A thousand thank you’s."

The problem, however, is that some of the friends mouthing those catchy lyrics were employees of Vimeo. Several record labels working under the EMI Music group filed a complaint on December 10, 2009, alleging that Vimeo not only hosts high-quality, full-length recordings of their music, but also "actively encourages" and "induces" its users to post that music as part of original work, most commonly "lip dubs." No doubt based on videos like the one above, the complaint also alleges that Vimeo staff participates in “making, selecting, commenting on, and at times choosing to delete audiovisual works that comprise the Video website."

EMI is pointing fingers at videos like this, this, and this as evidence of the site's infringement and awareness of that infringement. That awareness is important because it could distinguish this case from a similar one against Veoh.com, in which that video-sharing site found protection under the Digital Millennium Copyright Act's "safe-harbor" provisions. Those provisions prevent sites from being liable for the copyright infringement of their users so long as they promptly remove infringing material once notified by the copyright owner. In any event, Vimeo is refusing to remove the videos in question. Klein called lip-dubbing "harmless" and "fun."

But a more pressing question: Is it also fair?

Take the following video for example. A couple aboard a plane passes the time by recording themselves lip-syncing Elton John's "Rocket Man." Copyright law gives the original producer of a sound recording certain exclusive rights in the work. 17 U.S.C. §106. This means that, unless Elton John or his label permits "Rocket Man" to be reproduced, distributed or performed publicly—that includes online—anyone who does so infringes the copyright and could be liable unless the use qualifies as a fair use.

So, the couple that made the video incorporating "Rocket Man" may be infringing, but their use may be fair. EMI is targeting Vimeo instead of the couple, but to the extent their use is fair Vimeo would likely be off the hook.  Fair use permits uses of copyrighted materials considered beneficial to society.  These uses include those for "purposes of criticism, comment, news reporting, teaching, scholarship or research," 17 U.S.C. §107, but there is no hard-and-fast litmus test.

To determine whether fair use applies, courts consider four well-known factors: (1) The purpose and character of the use, including whether the use is of commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work.

Though work done for commercial purposes doesn't preclude a fair use defense, it does weigh against the defendant. Campbell v. Acuff Rose Music, 510 U.S. 569 (1994). Lip dub videos by themselves aren't commercial. They are made for fun and shared with no expectation of profit. Vimeo, however, is a commercial website, and it features videos to attract viewers and advertising revenue, something EMI is at pains to point out in its complaint. 

Either way, a case could be made that these lip dubs are transformative, meaning they differ from the original work in a way that creates new meaning. Adding video arguably turns the original sound recording into a new expression altogether. Elton John's "Rocket Man" becomes less about the music when it's accompanied by two people rocking out on a plane. The viewer is no longer concerned with the music and lyrics, so much as how the people look when singing the words. The thrust of the new work is humor: the humor in watching ordinary people mouthing the words of big pop stars in incongruous places while engaged in incongruous activities. 

Not convinced? Consider the choreography that's behind the Harvey Danger lip dub or how funny this girl looks trying to sing along to The Proclaimers. That type of creativity transcends the audio and creates something new altogether.

A problem for Vimeo, though, is Elton John's work is also creative. Under the second fair use factor, the more creative a copyrighted work is, the more protection it generally receives. Consider a creative spectrum with static on one end and Mozart on the other. Elton John is clearly more Mozart than static and the court will likely, in this respect, favor EMI's interest in protecting his work.

On factor three, lip dub videos generally use the entire copyrighted recording, which also weighs against fair use.  This might also weigh against Vimeo on factor four, the effect on the market (or a potential market) for the copyrighted work. If a court determines that fewer consumers will buy the original recording because lip dubs make the whole thing available for free online, that's bad for Vimeo.  On the other hand, who would actually substitute a goofy lip-synch for a legit copy of the song that can be played on a home stereo or portable mp3 player? Maybe it's not as outlandish as it sounds—one could simply play the video, minimize the window, and enjoy the original, high-quality recording without watching the performers. Rather than paying 99 cents to iTunes, one could strip the song from the video and create a new track, ready for shifting to that mp3 player. Copyright law exists to protect the economic interests of creators. Do they stand to gain or lose from lip dub videos? You get a sense of why factor four of the fair use test can be tricky sometimes.

Video sites have a history of featuring material that may not be protected by fair use. Wanting to hear a song by The Roots one night, but in the car and unable to purchase it, I accessed YouTube on my iPhone and played one of several videos that used the entire song while showing nothing more than the cover art to Rising Down. This is clearly the type of "video" that should be challenged, but I don't think lip dubs are the same. They have independent value. They are creative. They transcend the copyrighted material and become something new. At the very least, they're funny. Although I'm skeptical a court will favor this type of expression over what may be the economic interests of copyright holders, I do hope that in some way, on some site, lip dubs will stick around.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School.  Justin founded the Media and Communications Law Society and its SuffolkMediaLaw.com blog at Suffolk Law in 2009.)