Let's not go crazy: The incidental indictment

The Electronic Frontier Foundation is currently pursuing a court action against Universal, claiming the label was wrong when it forced YouTube to yank a video which featured a child dancing (the label huffed that you could hear thirty seconds of Prince in the background.) On Friday, Universal is trying to get the case thrown out.

The argument hinges, of course, on if the Prince soundtrack was incidental - or, if, as Universal seems to be suggesting, the mother was making a camcorder video of thirty seconds of Prince playing Let's Go Crazy to share online and her kid got in the way of the camera.

Incidental use seems to be getting eroded by exactly the people you'd expect to be protecting it - the sort of people who make TV programmes which claim to be capturing every day life. These days, if a programme inadvertently features a few seconds of something flickering on a TV screen in the background as a potential Top Model or Wife Swapper has a row with someone, out comes the blurry marquee to blot out the telly. We even saw an American Supernanny the other day where a kid briefly waved his picture book around, and the two seconds where a picture was pointed at the camera had the image smeared all over. Does anyone at Granada really think that having a brief glimpse of a drawing of a cow is going to infringe copyright? That a publisher will attempt to argue that parents will decide not to buy their offspring a book because they're just going to freeze the TIVO at that point instead? Or that the audience for Supernanny consists significantly of people who tune in hoping they might get to see a watercolour drawing of a cow?

The cumulative effect of all these blurrings is a more worry blurring - obscuring the rights that people have to take a photo or shoot a video where copyright material intrudes in the background. Because if the TV companies pretend they're not allowed to show an almost unidentifiable TV programme in the back of a shot, it must be because it's illegal, right?

Let's hope the EFF case offers a timely reminder of exactly what we're allowed to do.