Where's the Fair Use? #WTFU

[Spin Attaxx]

So this is a thing that's been happening a lot on the 'net, and I think it merits a general discussion topic.

For those not in the know, YouTube has lately been acting pretty shitty in regards to content creators, reviewers, parody makers etc. in that they'll take down their ability to make money off their work, restrict their ability to produce content, and even take down entire channels at the whims of whoever makes a copyright claim. Channel Awesome, I Hate Everything, YourMovieSucksDOTorg and lately Team Four Star are among a handful of those hardest hit. The kicker? They never tell these people about anything. Under U.S. law, however, these people are (in theory) protected by Fair Use - if you use footage from a work for the purposes of criticism, satire etc., you're allowed to use it without needing permission or paying royalties to the copyright holder(s). Hollywood, Toei, and even some obscure Russian guy in his bedroom don't see it that way, though, and will gleefully abuse YouTube's fucked copyright system to take down channels, big or small, over anything as petty as "this guy said something bad about my game". People have even received claims over music or games they themselves made!

What's worse, is that aside from YouTube being the silent judge, jury and executioner, the claimant gets pretty much all the power in the argument while the defendant is practically on their own. Oh, and false/countered claims aren't punished in any way, so there's nothing stopping corporate giants or no-name greedy thieves making claims repeatedly against larger channels and earn free money while wasting the channel's time and impacting their livelihood.

Quite frankly, something has to give with the (growing) amount of people making a stink about this. Since YouTube holds a monopoly over internet videos at this point, either a new video platform grows in opposition to YouTube's practices and gains enough momentum to become viable (as unlikely as that may be), or YouTube has to change their own rules to stop this kind of shit. Give defendants more power against claims, give punishments out for false claims to prevent people abusing it, have more communication with people, something. Here's a couple of videos on the matter you should probably watch, since they're more informed about this mess than I am:

From Channel Awesome (with I Hate Everything and YourMovieSucksDOTorg):

From The Mysterious Mr Enter:

From Jim Sterling:

 

[Ryannumber1gamer]

What YouTube has been doing is flat out disgusting when it comes to these content viewers, and the fact that people can actually copyright claim your video without actual repercussions if it was wrong means they can make themselves free money off your product even when YouTube even says "Yep, these guys were wrong about your video". How is that fair? It's even more disgusting that it hasn't been fixed when it was proved time and time again that their system was bullshit and being abused by others in order to silence criticism about certain games, like Day One: Gary's Incident where the developer tried to copyright claim TotalBiscuit's review of the game, DESPITE the owner allowing other reviews to remain up, and the fact they knew full well what TB was asking for, and even gave him a download code for the game!  

[Tara]

I'm going to copy what I said in the statuses on the matter-

-----

A reminder right now while you're all blasting YouTube, make sure your anger is targeted in the right place.  A lot of people using the hashtag #WTFU honestly don't seem to understand how it works.  YouTube is sort of caught in a predicament right now, because in order to be absolved of legal responsibility for the infringement posted on their site, they (under the law) have to have a system in place that takes videos down in a timely manner upon a takedown request being sent and they have to have a system in place to prevent repeat offenders.  The problem here isn't that YouTube is maliciously taking down videos, though it is worth a note that they are probably financially motivated and probably have their own share of shady business going on aside from that, it's that this system is far too easy to abuse and is actually costing people money.  Doug Walker makes some interesting suggestions for how this can be remedied, but as far as I know a lot of them aren't completely legal because they would require YouTube to sacrifice their safety net and make them legally responsible.  The only thing I can think of that might work is if YouTube started handing out fees for false takedown notices so that it's not profitable for companies to make these claims.

Also, remember that "fair use" is a legal defense, meaning it's not something that prevents you from going to court, but rather the defense you would use if you do go to court.

That being said, everyone's anger here is justified and I'm not trying to diminish it.  This kind of abuse is becoming far too common lately, and I think there definitely needs to be some change, but the problem is more the law than YouTube itself.

------

 

I also saw a post on Tumblr which likened fair use to the "self defense" and "insanity" defense in murder cases.  Meaning, regardless of intent, murder is still illegal, but you're likely to get reduced or no sentence if you can show that extenuating circumstances were present.  And I think that's a pretty accurate assessment.  Fair use is not a legal right and is not protected in the same manner as freedom of speech, religion, etc.  It's a legal defense that the courts usually decide, not the infringing parties in question.

I want to emphasize again that it is true that YouTube's copyright claim system is broken and has become a backdoor for abuse, some of which is not only fraudulent, but actually robbing people of their income.  This needs to be fixed one way or the other, but there is a whole other set of obstacles blocking our way that YouTube frankly can't do anything about.

Also, while I empathize heavily with the takedown of Team Four Star, as I really am a fan of the "abridged" style satires, I don't think they fall under fair use.  Like, yes, they're a parody, but the fact is that they still take all their footage directly from the show and use many other copyrighted imagery and audio in the process of making an episode.  Thus, the amount of third-party content that they use exceeds the boundaries of "fair use."  A better example of a parody protected under fair use would be this MAD sketch--

--which unabashedly makes use of characters from two franchises that clearly don't belong to them (Dragon Ball and Go, Diego, Go! specifically) to the point of both using their character designs almost completely unaltered and even calling them by name.  The assets, however, are all original and produced in-house.  All TeamFourStar does is dub over existing footage, which (when used in such excess) is not covered by fair use.  Another good example of "fair use" would be the numerous parody songs by Weird Al Yankovic.  The compositions of his parody songs are usually identical to the originals, but the fact that they're arranged and recorded in-house, as opposed to taking an instrumental version of the original and just dubbing over Weird Al's voice and lyrics, pretty much allows his songs to more neatly fit within the "parody" clause. (Though worth a note that even with the courts typically being in his favor, Weird Al always asks for permission from the original artist first both out of respect and to prevent this kind of debacle from happening in the first place.)

That being said, I don't think it's entirely fair for Team Four Star to be shut down, because their videos don't really have a noticeable impact on market value, despite the popularity.  So it's less that I think it's a wrongful takedown notice, as much as I feel like it's really not worth the company to invest any time in taking it down anyway.

The purpose of a copyright or a patent (in general) is to give the author complete creative control over how people use the output of their creativity.  Which means if they don't want a YouTuber dubbing over their show (rather they make money off the show or not is irrelevant), that is well within their right.  The purpose of fair use, on the other hand, is to prevent people from unfairly being targeted for it.  Basically, so you can't be sued just for mentioning Dr. Pepper in general speech or something equally trivial.  What happened to Brad Jones' Midnight Screening videos (wherein all that happens is he and a bunch of friends just talk about a video without any images, clips, or music being displayed) is a much more compelling case for abuse and a little more deserving of the #WTFU tag than most of the creators using the hashtag.

Anyway to wrap things up, do feel free to speak up and make your case about a system that is riddled with abuse.  Do feel free to talk to your local congressman or what have you about the laws that need to be amended to protect content creators and keep this abuse from running rampant and screwing over people trying to making a living.  Don't go plastering "fair use" over everything without at least knowing how it works.

[KHCast]

In regards to tfs I have to wonder if that was the case, why hasn't this been done earlier. I mean the series has been going on for years, and Toei animation has been seemingly okay with it existing. TFS even even acknowledges and gives credit to the original creators. It just comes off like they either saw this recent trend of things getting taken down and wanted in on it, or someone new is in charge and wasn't a fan of TFS.

[Rey Skywalker-Ren]

I do want to also point out that videos that use other's material for educational purposes fall under "fair use" as well. (commentaries, essays etc, you catch my drift)

To be honest, their videos being taken down is kinda justified in my opinion (meaning TFS). All they did was voice over the original clips, that weren't even theirs. Yes give copyright, claim fair use all you want.... but you are using clips without the creators permission and they have every right to call for it to be taken down. I also think that when people now say  "fair use", it sounds like another way of saying "I'm not going to take responsibility for the clips or material I used without permission" when it is really more something to use in the court of law. The judge decides if the material used is fair or not, not the people suing. 

[Tara]

8 minutes ago, KHCast said:

In regards to tfs I have to wonder if that was the case, why hasn't this been done earlier. I mean the series has been going on for years, and Toei animation has been seemingly okay with it existing. TFS even even acknowledges and gives credit to the original creators. It just comes off like they either saw this recent trend of things getting taken down and wanted in on it, or someone new is in charge and wasn't a fan of TFS.

Companies, like people, are prone to changing their mind, and they're not really obligated by the law to give a reason for it.

Hasbro in particular is pretty notorious for this in both the MLP and (I think) Transformers fanbases, the former of which almost had one of their most prolific conventions shut down (despite several executive staff scheduled for attendance) after several years of them knowing it existed for pretty much no reason.

[KHCast]

11 minutes ago, Mikgenes said:

I do want to also point out that videos that use other's material for educational purposes fall under "fair use" as well. (commentaries, essays etc, you catch my drift)

To be honest, their videos being taken down is kinda justified in my opinion (meaning TFS). All they did was voice over the original clips, that weren't even theirs. Yes give copyright, claim fair use all you want.... but you are using clips without the creators permission and they have every right to call for it to be taken down. I also think that when people now say  "fair use", it sounds like another way of saying "I'm not going to take responsibility for the clips or material I used without permission" when it is really more something to use in the court of law. The judge decides if the material used is fair or not, not the people suing. 

By that logic, Jim sterling is unfairly using content that isn't his, and it shouldn't surprise people if his vids were taken down or hit with content id . People reacting to videos and lets players, are using also the original content without directly asking the original creators, so it's fair to take down those vids. Nevermind that the credit was given to the original creators with TFS.

also regarding Jim, his new video was apparently slammed with a content ID. Ironic.

[Tara]

7 minutes ago, KHCast said:

By that logic, Jim sterling is unfairly using content that isn't his, and it shouldn't surprise people if his vids were taken down. People reacting to videos also are, lets players, are using the original content without directly asking the original creators, so it's fair to take down those vids.

Game reviews, video editorials, and LP's have always been on the gray side of legality, though.  People were blasting Nintendo just last year or the year before if I recall correctly for requesting takedowns on LP's of their games.

That being said, I don't think Jim Sterling or LPers are equivalent examples, because the nature of the overdubbed audio are noticeably different than TFS.  Not saying that any of them deserve to be taken down, mind you.

[Wittymations]

This is one of those cases that also fits me, as a creator of SFM material (none of which I even try to make money off of -- hell, one of those videos was accidentally monetized, I saw it making 11 cents and instantly turned it off).

For me, it's an annoying situation. I put a lot of work into my SFM videos, have to animate a lot of stuff, put the video up, and sometimes I'll get a whole copyright thing. It was still up, yes. But it couldn't be showcased off to mobile users -- that's half my potential viewers. I had to fight for it. I won. But I missed about one or two weeks of half my initial audience. That really bites.

That example was using a Frank Sinatra song, My Way. I'm not stealing from Frank Sinatra's beneficiaries. Hell, if anything, I'm showing off his work to a new audience and his work is also being showed off, for free, on an official Frank Sinatra youtube channel.

I feel if one claims no money off stuff like this and do plenty of their own work to form a new media, such as animation, it should be fine.I actually went to look at what I could have potentially made if I did try to make money off my two most popular videos, both with a few hundred thousand views, and that was a few thousand dollars. But I refuse to claim any of that. I'm essentially working for free.

Still, with any future projects I'm trying to steer away from copyrighted music, but I'm also animating with copyrighted models, copyrighted characters Making fan videos. This is the same league of fanart and fanfiction. Should it be acceptable to take these down, too?

[J&/MA/MC]

Seems like our fanbase is hit by arbitrary claims as well.

Seems like copyrights are killing comedy. Who knew?

And if you doubted Dougs credibility in this issue, look what the Roger Egbert website brought up in their weekly summary.

http://www.rogerebert.com/thumbnails/thumbnails-21716

[Candescence]

The thing is with TFS, there's also the element of parody involved, which is extremely important, because parody is an important use case in terms of fair use, which is also why I don't really agree that fair use doesn't apply to them. DBZA is a heavily edited and heavily cut-down version of the original show, with an original cast of voice actors and quite often a rather different style of writing and tone, acting as a commentary, homage and mockery of the original show all in one, made by people who genuinely love the source material, who even go out of their way to provide a disclaimer on the front of every episode for the explicit purpose of establishing the show as a parody and encouraging viewers to support the original series legally. I'm absolutely sure that this kind of parody falls well within the rights established by fair use. Though I sincerely doubt the takedown claim was made by anyone other than Toei, who really just does not give a damn.

Though, really, Youtube has a serious problem. The whole ContentID system is purely to appease intellectual monopoly holders, and is far beyond what the law actually requires them to do.

Spoiler

Yes, I am using "intellectual monopoly" instead of the term "intellectual property". I consider the former a much more accurate term for what copyright is, and I've pretty much vowed to use it in place of the latter whenever possible, if partly to spite big media who are pretty much responsible for copyright being the monster that it is now.

 

[The Tenth Doctor]

I've been hit by this for years, even though I'm not monetised. The biggest hit was my Sonic 06 cartoon that was banned in several countries due to the use of Iron Man 3 music. It was lifted a few months later but was instantly hit by another for Beauty and the Beast music. It is irritating to try and mask music or use only safe stuff, even when I get no money from it. Heck, lot's of people comment on my cartoon's asking what music I used so they can hear it for themselves, I'm advertising!

[JeffCharizardFlame]

BrainScratch had a problem like this as well, they got copyright striked for an actor's role in one of their previous playthroughs, Catherine. They couldn't upload that much for a week or so before YouTube finally lifted their strike. >.> And commentaries are protected under the Fair Use clause, aren't they? As long as advertisements are not really present, I mean.

[Wittymations]

What interests me is that this is almost always audio-related and almost never visual-related. The only exceptions seem to be if someone uploads, let's say, a full episode of WWE Raw, or the Simspons, or something -- which is understandably taken down. But if someone makes a Youtube Poop or something like that, which does use copyrighted material, it's typically fine until they throw in a Megadeth song or something, THEN it gets taken down.It can even be only a few seconds of that song.

 

I don't really understand it.It's like the music industry is much, much angrier than the 'television' industry.

[Pauly-kun]

Yeah, YT has been very shady since certain thing in recent years that everybody knows.

Spoiler

The Google Era

Here's a video from the perspective of a Copyright Attorney.

 

[Tornado]

9 hours ago, Candescence said:

DBZA is a heavily edited and heavily cut-down version of the original show, with an original cast of voice actors and quite often a rather different style of writing and tone, acting as a commentary, homage and mockery of the original show all in one

Team Four Star didn't invent the idea of a gag dub.

[Your Vest Friend]

Looks like there's at least one known company explicitly abusing the system to take money. 

 

[Merlin] CDLTD have apparently been doing this to all sorts of videos. It's not even their stuff. 

[Johnny Boy]

Add E-Rod (aka the Blockbuster Buster) to the list. The man just posted a new review to his Patreon account and not even 2 minutes later it got taken down by Fox. Yep, the systems so broken that it can now hit unlisted videos with copyright claims.

[Candescence]

17 hours ago, Tornado said:

Team Four Star didn't invent the idea of a gag dub.

I know? That's not even my point. This post confuses me.

[Tornado]

The point seems to be that because DBZ TAS is a parody then Toei has no right to have it taken down. The problem is that the typical go to argument of "it's a parody!" does not automatically make any use of copyrighted material fair use. We're not talking about Weird Al-style riffings, where one or two lines are appropriated but the majority of the content is changed to something that is only similar. They aren't scene for scene remakes, but done in a different medium for comedic reasons like Robot Chicken does all the time. There's no chance in hell Disney would sue Turner for this:

Because even Lucasfilm's infamous legal team would get their asses handed to them.

 

 

 

But that's not what is being talked about. TAS inherently are almost entirely made up of copyrighted material with a new audio track added. They are gag dubs, regardless of whether or not they are parodic in nature (and I don't know if DBZ TAS stuck to actually being a parody that closely, but I know YGO TAS didn't); and if they want them to stay up on the internet without worrying about any legal repercussions/takedowns they need to have the consent of the original copyright owner just the same as when an actual dubbing studio does the same with a foreign property.

[SBR2]

I think my favorite one of these is how Chad Rocco has had his Green MnM video taken down by the WWE.

Honestly I think as long as the clips are being used for Review or Parody purposes they're fair use. It's not like even with TFS they upload the whole show they put clips together and put jokes on them.

[KHCast]

I personally don't see the issue with a parody in the style of TFS's abridged. All their other abridges have been fine(hellsing, FF7) and they don't profit off those videos in question(they make their own merch, but that's not sold on YouTube). It would be one thing if they were making money off them, but they aren't. It's merely creative freedom at work, and really just more promotion for DB. (And again, the intro for DBZA refers to the content creators and asks that people also support them. Nothing really is being lost.) I mean, you really shouldn't need to ask permission to use clips and bits from a show,movie, sing, etc unless you're intending to make money off said video. Otherwise, more than half of YouTubers comedy videos should be held on the same Calibur as TFS. Doesn't matter that they aren't dubbing like TFS, they're still using without permission clips, and music without permission after all.

[Tara]

The ideology of "it's free advertising and I'm doing them a service" would be fine if it didn't 1) over-emphasize the negligible amount of potential revenue that the creators hypothetically could receive as a result of people seeing your video, and 2) assume that this is the kind of advertising the original creators want.

[Meta77]

On 2/24/2016 at 2:32 PM, Tara said:

I'm going to copy what I said in the statuses on the matter-

-----

A reminder right now while you're all blasting YouTube, make sure your anger is targeted in the right place.  A lot of people using the hashtag #WTFU honestly don't seem to understand how it works.  YouTube is sort of caught in a predicament right now, because in order to be absolved of legal responsibility for the infringement posted on their site, they (under the law) have to have a system in place that takes videos down in a timely manner upon a takedown request being sent and they have to have a system in place to prevent repeat offenders.  The problem here isn't that YouTube is maliciously taking down videos, though it is worth a note that they are probably financially motivated and probably have their own share of shady business going on aside from that, it's that this system is far too easy to abuse and is actually costing people money.  Doug Walker makes some interesting suggestions for how this can be remedied, but as far as I know a lot of them aren't completely legal because they would require YouTube to sacrifice their safety net and make them legally responsible.  The only thing I can think of that might work is if YouTube started handing out fees for false takedown notices so that it's not profitable for companies to make these claims.

Also, remember that "fair use" is a legal defense, meaning it's not something that prevents you from going to court, but rather the defense you would use if you do go to court.

That being said, everyone's anger here is justified and I'm not trying to diminish it.  This kind of abuse is becoming far too common lately, and I think there definitely needs to be some change, but the problem is more the law than YouTube itself.

------

 

I also saw a post on Tumblr which likened fair use to the "self defense" and "insanity" defense in murder cases.  Meaning, regardless of intent, murder is still illegal, but you're likely to get reduced or no sentence if you can show that extenuating circumstances were present.  And I think that's a pretty accurate assessment.  Fair use is not a legal right and is not protected in the same manner as freedom of speech, religion, etc.  It's a legal defense that the courts usually decide, not the infringing parties in question.

I want to emphasize again that it is true that YouTube's copyright claim system is broken and has become a backdoor for abuse, some of which is not only fraudulent, but actually robbing people of their income.  This needs to be fixed one way or the other, but there is a whole other set of obstacles blocking our way that YouTube frankly can't do anything about.

Also, while I empathize heavily with the takedown of Team Four Star, as I really am a fan of the "abridged" style satires, I don't think they fall under fair use.  Like, yes, they're a parody, but the fact is that they still take all their footage directly from the show and use many other copyrighted imagery and audio in the process of making an episode.  Thus, the amount of third-party content that they use exceeds the boundaries of "fair use."  A better example of a parody protected under fair use would be this MAD sketch--

--which unabashedly makes use of characters from two franchises that clearly don't belong to them (Dragon Ball and Go, Diego, Go! specifically) to the point of both using their character designs almost completely unaltered and even calling them by name.  The assets, however, are all original and produced in-house.  All TeamFourStar does is dub over existing footage, which (when used in such excess) is not covered by fair use.  Another good example of "fair use" would be the numerous parody songs by Weird Al Yankovic.  The compositions of his parody songs are usually identical to the originals, but the fact that they're arranged and recorded in-house, as opposed to taking an instrumental version of the original and just dubbing over Weird Al's voice and lyrics, pretty much allows his songs to more neatly fit within the "parody" clause. (Though worth a note that even with the courts typically being in his favor, Weird Al always asks for permission from the original artist first both out of respect and to prevent this kind of debacle from happening in the first place.)

That being said, I don't think it's entirely fair for Team Four Star to be shut down, because their videos don't really have a noticeable impact on market value, despite the popularity.  So it's less that I think it's a wrongful takedown notice, as much as I feel like it's really not worth the company to invest any time in taking it down anyway.

The purpose of a copyright or a patent (in general) is to give the author complete creative control over how people use the output of their creativity.  Which means if they don't want a YouTuber dubbing over their show (rather they make money off the show or not is irrelevant), that is well within their right.  The purpose of fair use, on the other hand, is to prevent people from unfairly being targeted for it.  Basically, so you can't be sued just for mentioning Dr. Pepper in general speech or something equally trivial.  What happened to Brad Jones' Midnight Screening videos (wherein all that happens is he and a bunch of friends just talk about a video without any images, clips, or music being displayed) is a much more compelling case for abuse and a little more deserving of the #WTFU tag than most of the creators using the hashtag.

Anyway to wrap things up, do feel free to speak up and make your case about a system that is riddled with abuse.  Do feel free to talk to your local congressman or what have you about the laws that need to be amended to protect content creators and keep this abuse from running rampant and screwing over people trying to making a living.  Don't go plastering "fair use" over everything without at least knowing how it works.

There is so much logic in this it hurts. TFS while their stuff is funny in a true sense owns no rights what so ever to what they make. Sure its "ok" funimation laughs and does not mind but TOEI is the end all say all for the rights as they are technically the head of the dragon. Plus tfs profits off someone elses work and animation. Sure they cut bits and pieces here and there but so what? If that was the case any AMV someone sticks online could fall under that blanket.

[Candescence]

The thing is, there isn't a legally-defined limit to what material can and cannot be used in a parody, if partly because such a test hasn't really been tried in court, mostly because the use of material taken from the work itself rather than just ideas, concepts, etc is a very recent phenomenon caused by the advent of the internet and editing software. From what I'm aware, there's theoretically no established limit to what the application of fair use with parody covers, only that the parody itself needs to at least provide some sort of meaningful commentary on the original. From the wikipedia article on Parody:

Quote

Although a parody can be considered a derivative work under United States Copyright Law, it can be protected from claims by the copyright owner of the original work under the fair use doctrine, which is codified in 17 U.S.C. § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works". That commentary function provides some justification for use of the older work. See Campbell v. Acuff-Rose Music, Inc.

If you're going by the strict definition of what the Supreme Court ruling establishes, then an abridged series constitutes "some elements", which includes some animation footage, and at least comments on the original work. By all objective standards, DBZA falls within the established legal definition of parody, and therefore is protected under fair use. You may disagree that it should be protected, but there's simply no legal definition of "parody" that disqualifies it.