Where's the Fair Use? #WTFU

[Tara]

Except you're arguing under the notion that fair use is a "protection," which is erroneous.  Fair use doesn't mean it's okay to use those clips or that Toei has no right to ask for a takedown.  It means that if the judge (read: not the infringing party) decide that it is fair use, then you will likely not be charged exuberant amounts of money for it, because you weren't using it in a manner that was blatantly harmful to the market value of a work.  For example, Sonic Stadium falls under fair use, because the use of copyrighted content by Sega is used for journalistic and educational purposes.  That doesn't mean that Sega would not have the right to issue a C&D takedown notice; it just means they haven't because they've visibly shown that they're not only okay with us but quite like having us around.

And while it's true that there is no legally defined meaning of "parody," the bolded text does not entail that TFS are automatically protected by fair use.  "Elements of a prior author's composition" could, and in most cases, just mean characters, names, location, plot synopses, etc.  It does not necessarily entail the use of previously-shot clips, copyrighted music, etc.

And all this just to say that no one is arguing for or against rather or not it should be protected, but that people are erroneously shoehorning the term "fair use" into things without actually knowing that means or how it is applied to a derivative work, which isn't really helping anyone's case.

[Meta77]

Even more if they just had the videos up would be one thing but its also the fact TFS profits off anothers work. Unlike mad or RC that makes most all their stuff from the ground up to parody something TFS uses material someone else made and just dubs over lines and adds  few edited clips here and there while making money off it. Which is a big no no unless you have the ok from the heads.

[Ryannumber1gamer]

I think it's only fair we link TFS' video defending themselves.

 

[J&/MA/MC]

Reading this discussion here, I see a crucial dimension being forgotten here; Time.

Time changes art, time changes attitudes and time changes accessibility.

I think it makes us unsympathetic mentioning establishments such as Weird Al and MAD when discussing the definitions of parodies when they're already on top of the world. What happened is that the definition of "parody" have changed dramatically the last 15 years due to sites like Newgrounds and such, making the genre fresh.

If Content ID becomes a thing on Instagram and Vine, we're outta here. 

[Tornado]

Quote

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.

If we're going by the strict definition of what the Supreme Court ruling establishes, a typical TAS doesn't contain "some elements". Look at the Wikipedia page for the court case instead of the page that summarizes it into one sentence. That court case was about a parody song that used the melody and the opening line from a Roy Orbison song, and was commercial. The fact that it was done commercially was the only reason it was brought to the Supreme Court in the first place, as the case itself was "about" if a parody can be sold commercially without the original maker's consent. Nonetheless, they exhaustively detailed the four elements of fair use to cover their bases for that specific case as they related to each other:

1. The parody song being commercial in nature did not inherently nullify fair use status, since being commercial is only a part of what the "purpose" of the song was, and the rest of the factors of fair use must still be taken into consideration (with different levels of importance depending on how different the derivative work is).
2. The original nature of the copyrighted works doesn't really apply to parodic works.
3. The parody song did not copy excessively from the original song. It recreated the melody for the most part and copied the first line of the song, but that was found to just make it clear what the song was a parody of and then it went off and did its own thing.
4. It didn't interfere with the market value of the original song, and since the original was a Roy Orbison song from 1964 and the parody was a rap song from 1994 it doesn't really need to be explained I don't think.

 

 

 

You want to compare DBZ:A to that court case, we can:

A typical TAS would almost certainly breeze through the first two factors of fair use. It's a clear spoof of the copyrighted work and it isn't really commercial since TeamFourStar doesn't really directly profit off of it, and the second factor is largely meaningless to parodies.

 

However, then we get to the third thing. Literally nearly the entirety of every episode of DBZ:A is made up of copyrighted material. It follows the same rough story as the copyrighted works. It even (occasionally) copies the writing of the copyrighted material when it fits whatever joke is trying to be told. There is no real deviation from what happens over the course of a DBZ episode and the DBZ:A episode following it other than how much less time the latter takes up. That doesn't automatically prevent DBZ:A (or any other TAS) from falling under fair use, but it sure as hell works against it if it ever went to trial.

 

Then we get to the fourth thing. DBZ:A largely exists to poke fun of and mock (out of love, but that's not really relevant) the conventions, storytelling and tropes of Dragonball Z. TeamFourStar do so by appropriating most of the content of said property, and then putting a spin on it (generally) to show how ridiculous it can be. As you said, DBZ:A 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. It has become immensely popular in the process.

Toei has, for the past half decade, been attempting to relaunch said property for a new audience. The centerpiece of this effort has been an attempt to remove many of the elements that DBZ:A has poked fun at ever since the show started, like the plodding pace and hopelessly irrelevant storylines; to be left with a new version of the show with much tighter writing and better action. They've, somewhat ironically, done so with the same methodology that TeamFourStar uses to create their videos; chopping up episodes of the original series, recording new dialogue for them and remastering on the resulting product.

To put another way, DBZ Kai is a heavily edited and heavily cut-down version of the original show, with newly recorded dialogue from mostly the same voice actors and quite often a rather different style of writing and tone

 

How can it be argued that the former can't interfere with the market acceptance/value of the latter?

 

 

Even the section you quoted from Wikipedia doesn't say that just being a parody of something makes it fair use, because that's not what the law says. In fact, the Supreme Court said pretty much the exact opposite of what you've been saying in this thread:

Quote

Parody may or may not be fair use, and petitioner's suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.

I mean, this is certainly subjective at this point because the Supreme Court specifically said that fair use doctrine has to be subjective, but I can't think of any way in hell that any typical TAS would stand up to the third factor of whether something can be fair use if a rights holder wanted to push the issue, even if the humorless Japanese companies couldn't already reasonably argue that it fails to do so for the fourth.

[Tara]

On 2/27/2016 at 6:11 PM, AMC/H&M said:

Reading this discussion here, I see a crucial dimension being forgotten here; Time.

Time changes art, time changes attitudes and time changes accessibility.

I think it makes us unsympathetic mentioning establishments such as Weird Al and MAD when discussing the definitions of parodies when they're already on top of the world. What happened is that the definition of "parody" have changed dramatically the last 15 years due to sites like Newgrounds and such, making the genre fresh.

If Content ID becomes a thing on Instagram and Vine, we're outta here. 

But on the other hand, time has also made Flash (and any number of free alternatives) infinitely more accessible with a near endless number of tutorials on the software uploaded completely for free on YouTube.  Learning how to animate has literally never been easier, and while I'm not saying that this means animation of actual quality animation is on a rise, accessibility is an extremely moot point.

The legal definition of parody hasn't changed just because some people have misused the term.

[Spin Attaxx]

Reviving this with, for once, some good news! Looks like NC's idea of a claimed vid's lost money being held by YouTube and paid to the appropriate party once the claim is resolved is going to be put into effect:

Quote

At YouTube, one of our core values is a belief in the freedom of opportunity. We believe anyone should have the opportunity to earn money from the videos they create and turn their channels into successful businesses. That’s why we opened up the YouTube Partner Program nine years ago and why we remain the only platform where anyone with an idea and a camera can turn their videos into full time jobs. We understand just how important revenue is to our creator community, and we’ve been listening closely to concerns about the loss of monetization during the Content ID dispute process. Currently videos that are claimed and disputed don’t earn revenue for anyone, which is an especially frustrating experience for creators if that claim ends up being incorrect while a video racks up views in its first few days. Today, we’re announcing a major step to help fix that frustrating experience. We’re developing a new solution that will allow videos to earn revenue while a Content ID claim is being disputed. Here’s how it will work: when both a creator and someone making a claim choose to monetize a video, we will continue to run ads on that video and hold the resulting revenue separately. Once the Content ID claim or dispute is resolved, we’ll pay out that revenue to the appropriate party. We’re working on this new system now and hope to roll it out to all YouTube partners in the coming months. Here’s a closer look at how it’ll work once it’s live:

We strongly believe in fair use and believe that this improvement to Content ID will make a real difference. In addition to our work on the Content ID dispute process, we’re also paying close attention to creators’ concerns about copyright claims on videos they believe may be fair use. We want to help both the YouTube community and copyright owners alike better understand what fair use looks like online, which is why we launched our fair use protection program last year and recently introduced new Help Center pages on this topic.

Even though Content ID claims are disputed less than 1% of the time, we agree that this process could be better. Making sure our Content ID tools are being used properly is deeply important to us, so we’ve built a dedicated team to monitor this. Using a combination of algorithms and manual review, this team has resolved millions of invalid claims in the last year alone, and acted on millions more before they impacted creators. The team also restricts feature access and even terminates a partner’s access to Content ID tools if we find they are repeatedly abusing these tools. We will continue to invest in both people and technology to make sure that Content ID keeps working for creators and rightsholders. We want to thank everyone who’s shared their concerns about unintended effects from Content ID claims. It’s allowed us to create a better system for everyone and we hope to share more updates soon.

David Rosenstein, Content ID Group Product Manager, recently watched “Coachella VR 360 – Week 1 Sunday Highlights”