The Electronic Frontier Foundation announced on Monday that Universal Music Group has rescinded its DMCA take down notice in connection with a YouTube video criticizing hip hop megastar Akon. The video was created by conservative blogger Michelle Malkin for her videoblogging site, Hot Air.

On May 3, UMG sent a DMCA take down letter to YouTube asking YouTube to remove a video in which Malkin called Akon, among other things, an “out-of-control animal” and a “thug.” Malkin supported her commentary with 20-30 second clips from his music videos and concert footage at a Trinidad nightclub in which he brings a teenage girl onstage and dances with the girl in a graphic manner.

The video can be viewed at the following link: http://www.youtube.com/watch?v=YZL1IHw6ea8.

On May 8, with help from the EFF, Malkin filed a DMCA counter-notification with YouTube, claiming fair use.

There is no “bright line” rule to determine whether use of a particular copyrighted material is a “fair use.” Fair use is determined on a case by case basis.

There are four factors used in “fair use” analysis: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount of the work used, and (4) effect of the use upon the potential market for the copyrighted work.

A quick analysis on how the four fair use factors would have been applied to Malkin’s use is as follows:

(1) Purpose and character of the use - Malkin’s use of the works was non-commercial and transformative. Use is “transformative” if it adds something new, with a further purpose or different character, altering the original with new expression, meaning, or message. Her commentary certainly gave the works a different character and altered the original with new expression and meaning. This factor works in favor of Malkin.

(2) Nature of the copyrighted work - Creative works like music and art are afforded a high level of protection. The original work is a creative work, so this factor works against Malkin.

(3) Amount of work used - Malkin did not use entire clips of the songs in question. She only used around twenty or thirty seconds of each clip, just enough to illustrate her point by allowing the viewer to appreciate a few bawdy sentences sung by Akon. However, music videos are only three to four minutes long, so this use is more substantial than taking a few sentences out of a feature length film. This factor may work slightly against Malkin.

(4) Effect of use upon potential market for the work - This is the most important factor according to many courts. The issue here is whether Malkin’s video is a market substitute for the original. Would the market for Akon’s work be harmed, because Akon fans who jam to “Smack That” and “I Wanna F*** You” would rather watch Malkin’s version instead? Hardly. It should be noted that any harm suffered by the original as a result of negative commentary is generally irrelevant. See, for example, On Davis v. The Gap, Inc., 246 F.3d 152, 175-176 (2d Cir. 2001), where the court articulated this principle:

If the harm resulted from a transformative secondary use that lowered the public’s estimation of the original (such as a devastating review of a book that quotes liberally from the original to show how silly and poorly written it is), this transformative use will be found to be a fair use, notwithstanding the harm. If, on the other hand, the secondary use, by copying the first, offers itself as a market substitute and in that fashion harms the market value of the original, this factor argues strongly against a finding of fair use.

Malkin comes out the winner.

UMG did the right thing in backing down.