I recently clashed with Giant Media Corporation Universal Studios over copyright, and lost. I probably could push it and win, but their lawyers can beat up my lawyers, and whether I’m right or wrong is probably irrelevant.
The argument was brokered by YouTube, whose interest is in remaining neutral so that Giant Media Corporations don’t sue them. Because a small company like YouTube and their parent company Google something-or-other don’t need to get dragged into this nonsense.
Look, copyright law is supposed to facilitate creativity, not stifle it. It facilitates creativity because it is supposed to ensure you don’t just rip everyone else off willy-nilly. If your work can just be stolen, you’re not going to put any effort into being creative. Few will, anyway. Some people are creative just to be creative, but the vast majority would like to earn a buck or two from it, if possible.
So there’s copyright, and then there’s this thing called “fair use.” It means there are times when you can expect to reasonably and legally use the work of others, and not have to worry about getting sued. Understanding and honoring fair use is more important than ever nowadays, when the power to create media that were previously only accessible to Giant Media Corporations has been distributed to the masses. Now that both information and creativity have been democratized (among those who can afford a laptop and some basic software), the Giant Media Corporations worry more than ever over their own well-being. If any schmoe can do what they do, what’s that going to do to stock prices?
And by the way, Fair Use is not just putting a disclaimer on your YouTube video. And it has nothing to do with whether you make money off what you create (or borrow). There is a pretty good “Best Practices for Online Video” document that has been put together by folks in the business. In that document, the first two questions you must ask yourself (because that’s what the judges will typically ask themselves when you’re hauled to court) are:
– Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
– Was the material taken appropriate in kind and amount, considering the nature
of the copyrighted work and of the use?
As the Best Practices guide concludes, if the answer to both questions is “yes”, you’re probably OK. But there are also other cases of Fair Use:
– Commenting on or critiquing of copyrighted material. Nowadays, you don’t have to be Gene Siskel to critique movies. Anyone can do it. As long as you don’t reproduce the entire movie under the guise of “critique” and actually say something (positive or negative) about it, you’re critiquing copyrighted material. In this case, reproducing an excerpt for illustration purposes is completely legal (I’m talking to you, Universal Studios!)
– Using copyrighted material for illustration or example. As in the example above, you are creating new content – you’re expressing thoughts or ideas, and it’s legal to use an appropriate amount of a copyrighted work to help clarify your point, whatever you’re talking about. This is how night-time comedians on cable TV make their money – did you think those news clips they use to make fun of politicians were not copyrighted? Of course they are! And Fair Use isn’t just for Jon Stewart.
– Capturing copyrighted material incidentally or accidentally. Videotaping your kids opening Christmas gifts and Nat King Cole is singing in the background? You may post the video on YouTube if you wish.
– Reproducing, reposting or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon. This one is a bit tricky. Can I record Bruce Springsteen in concert when he comes to town, and claim that I’m preserving an event or experience? I guess it’s about proportionality. I’ve done this, and so far Bruce hasn’t objected.
– Copying, reposting and recirculating a work or part of a work for purposes of launching a discussion. This could be, for example, posting a part of a movie on YouTube to prompt the discussion that ensues in the comments. For example, in the movie “Kind of a Funny Story”, you could show where they sing Queen’s “Under Pressure” and ask whether this is an effective technique. Oh, wait – that’s what Universal Studios objected to!
– Finally, you can quote in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements. This is what you call a mash-up. Bush and Blair sing “Endless Love.”
Unfortunately, the way it works on YouTube is:
– you post a video you think qualifies for “fair use”
– the YouTube filter catches it, and the owner of the quoted work decides whether you may continue to share this work
– you have an opportunity to dispute the claim (after repeated warnings by YouTube that you could be mercilessly sued if you’re wrong in your claim)
– the owner of the quoted work decides if they agree with you or not.
In this case, Universal Studios decided they don’t agree I was critiquing the film “Kind of a Funny Story” or quoting for the purpose of stimulating discussion, so YouTube deleted the video, and sent me a Stern Warning to discourage me from pushing back. This is the email I got from YouTube:
Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the Copyright Tips guide.
If one of your postings has been misidentified as infringing, you may submit a counter-notification. Information about this process is in our Help Center.
As much as I’d like to claim one for the little guy fighting the Giant Media Conglomerates who want to bully everyone else into accepting their version of copyright law, I’m not sure I have the energy to try and fight this all the way from southern Africa. And these things only turn out well in the movies.
Instead I’ll share a video by people whose ridiculous claim of “Fair Use” has not been disputed, and an a capella version of “Under Pressure” that no one has an issue with. Enjoy!
