The Dancing Baby that Beat Universal
Understanding Fair Use in the YouTube Age
YouTube holds a monopoly on the video-sharing industry in the U.S., with over 500 hours of footage uploaded every minute. That means in 29.2 hours, 100 years worth of content will be uploaded to the site. As with most systems that large, oversight is paltry at best, which here translates to a lot of copyright infringement.
More than 400 million videos have been monetized by copyright owners, which doesn’t include videos that have been removed altogether. YouTube automates their system to identify copyrighted work, and just like any automated system, there are some kinks. Intellectual property law tends to give power to creators with the most money, so it becomes easy for big companies to abuse the YouTube takedown system when they’re only up against the average joe. YouTubers have long decried the website for failing to protect users from bogus copyright claims, citing that their content is either not owned by the claimant or that their use of copyrighted material is protected as fair use. YouTube admits the system isn’t perfect, but does the YouTube community have a major case behind it to back up its fair use arguments?
What’s the Deal with Fair Use?
On February 16th, 2016, Channel Awesome, home to popular internet comedian Doug Walker, posted “Where’s the Fair Use?”. In the video, Walker details the numerous issues facing YouTubers as a result of the current Content ID system and how, as a popular YouTuber, even his own channel is not immune to such problems. Numerous major YouTubers followed suit, including Jim Sterling, TeamFourStar, boogie2988 and Mr Sunday Movies. What catches my eye is their hashtag: #WTFU or “Where’s the Fair Use?”
The claim is that the videos they upload are protected as fair use, but most of the discussion has focused on YouTube’s broken system. Fair use is used here as an umbrella term meant to cover numerous issues. While YouTubers have been crying fair use, I’m not sure how many of their videos would be deemed fair in court.
You may have recently read reports of YouTuber Ray William Johnson settling in court with entertainment company Junkin Media over Johnson’s Equals Three use of viral videos owned by Junkin. Johnson claimed his videos were protected as fair use, but an anonymous juror stated the jury unanimously agreed that the videos did not constitute a fair usage. Johnson’s case has YouTubers worried. Users believe it will set a precedent for future cases, but settlements do not produce precedents (nor do juries) so the fear is unwarranted. It will, however, stand as a cautionary tale for the YouTube community, especially for the #WTFU movement.
I’m not saying fair use isn’t important to YouTube and that fair videos aren’t taken down, but most copyright laws were made in a pre-YouTube world. The Digital Millennium Copyright Act (or DMCA for short), which dictates copyright guidelines for the web, only considered situations like, “What would happen if someone posted a whole movie onto a message board?”. Lawmakers probably didn’t imagine something like YouTube was even feasible back in 1996. What we see as commonplace and fair today on the web might not even be legal under the actual law, since so much has changed.
So while YouTubers are asking “Where’s the Fair Use?”, they should probably be asking,” What is fair use, and do our videos even qualify?”.
What is Fair Use?
Fair use is one limitation and exception of the exclusive rights copyright holders have under U.S. law. It allows for unlicensed citation or incorporation of copyrighted material in another work. This allows copyrighted material to be used in works such as criticism, commentary, parody, reporting and teaching.
Fair use was established in U.S. law by Judge Joseph Story in the 1841 case of Folsom v. Marsh. Story created four factors that would be weighed against one another in deciding if a use of copyrighted material was fair.
The four factors as they appear on the Copyright Act of 1976, derived from Story’s original ruling, are as follows:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
4. and the effect of the use upon the potential market for or value of the copyrighted work.
It bears mentioning that fair use wasn’t designed to protect those looking to utilize copyrighted works. Folsom vs Marsh is a clear example of a court strengthening the rights of copyright holders. The defendant claiming fair use even lost the case. As law professor L. Ray Paterson notes:
“In 1840, the rights of copyright were available only for a book as it was published; another author could abridge or translate the book without infringing the copyright. Story, aware of both doctrines, acknowledged the abridgment doctrine in Folsom, and held that the defendant’s work was not an abridgment. He then proceeded to redefine infringement, which in his hands became any copying, duplicative or imitative, in whole or in part of the copyrighted work. This redefinition of infringement enlarged the copyright monopoly and became the basis for what was to become fair use.”
Paterson argues that before Folsom v. Marsh, copyright laws were best understood as an aspect of public domain laws used to help limit monopolies. Story’s ruling set the groundwork for copyright being viewed as part of property law. So while Folsom v. Marsh is hailed as a win for those looking to use copyrighted works, it technically put more limits on what the public can do overall.
The Four Factors Explained
To understand how fair use is judged, one must understand the four factors.
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
In the case of Campbell v. Acuff-Rose Music, Inc., the Supreme Court ruled the more “transformative” a work, the more likely it will be seen as fair and the less the other three factors matter. Non-transformative pieces will be deemed as “derivative” and infringement. An example of a derivative work would be fan fiction, but most companies seem to be fine with it as long as it isn’t published for commercial purposes.
The case of Salinger v. Colting showcases what would happen if a derivative work was published. Fredrik Colting’s 60 Years Later: Coming Through the Rye told the tale of an old Holden Caulfield 60 years after The Catcher in the Rye. J.D. Salinger sued Colting on the basis a sequel is not transformative and therefore infringement. The court agreed, citing that the character of Holden Caulfield was still essentially the same character and added nothing of value. This is why unless you change the names of the characters, alter the plot and add excessive amounts of S&M, your fanfic will never net you profits.
The commercial nature of the use is key. Chances are, a non-commercial use will be more likely to be seen as fair. Commercial use can be fair, but it does work against it, as we’ll see in factor four.
2. The nature of the copyrighted work.
What purpose does the copyrighted content serve to the new work? Does the new work necessitate the use, and how is it used? Generally, factual material used for educational purposes fares better than works of fiction. This is because the factual knowledge can be interpreted as more important to the public’s benefit.
This factor also deals with the issue of unpublished works. While both published and unpublished works can be considered fair, unpublished works qualify less, since a copyright holder has the right to control the first publication of a work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
Factor three explores the amount of copyrighted material utilized. Less is usually the best way to go; one should probably only use the bare minimum necessary to make a point. Elvis Presley Enterprises Inc. v. Passport Video is a good example where excessive use of copyrighted material hurt the claim. It might be considered transformative to comment over copyrighted clips as Passport Video had done, but if what is said doesn’t directly comment on the footage being shown, it can be considered filler, which is not protected by fair use. This is one of the reasons the courts sided against Passport Video.
However, even small uses can be deemed infringement if it’s believed the “heart” of the material has been used. The “heart” is what one would deem the most memorable or key aspects of any work. The only case where it’s usually fine to utilize this portion of a work is parody, which requires “the heart” of the material so it can be made fun of.
4. The effect of the use upon the potential market for or value of the copyrighted work.
Does the work make it harder for the copyright owner to turn a profit? If the rights holder has suffered losses, a fair use claim will almost certainly be disregarded. Use in criticism is fine; it may hurt the market for the original, but that’s what criticism is designed to do.
This factor deals specifically with issues where the use can either substitute for the original or damages it, therefore nullifying the original’s market.
A Right or a Defense?
It is important to consider that fair use is not thought of as a right. Copyright is a right; fair use is an affirmative defense.
An affirmative defense is a set of facts that, if proven in court, can mitigate the legal consequences of the defendant’s otherwise unlawful conduct. However, fair use is different in that if a defendant can prove they used copyrighted material fairly, then there is no crime, ergo one doesn’t have to be excused from punishment.
In Bateman v. Mnemonics, it was argued that fair use should be thought of as a right since it doesn’t fit nicely into the definition of an affirmative defense. However, in Campbell v. Acuff-Rose Music Inc., the Supreme Court stated that fair use is in fact an affirmative defense due to the nature of each case. Fair use can only function as a defense.
Fair use can only be determined on a case by case basis since every case is inherently different. Something is only fair when a judge or jury decides to view it as such. One claiming fair use must prove it in court.
That’s a big issue for YouTubers since many can’t afford to take their claims to court. Precedents could be set if more YouTubers pursued legal action, but the overwhelming odds of one user beating a corporation are enough to scare off any potential suits. YouTube recently announced it would pay the legal fees for a few cases where creators cited fair use as a defense, but nothing has yet to come of it.
There is, however, one major case of a YouTuber taking copyright holders to court.
Universal vs. A Dancing Baby
Lenz v. Universal Music Corp is perhaps the most well known fair use case in recent memory and the case the #WTFU movement singles out as the shining example of their fair use rights.
Stephanie Lenz posted a video to YouTube in 2007 entitled Let’s Go Crazy #1, which consisted of 29 seconds of her child dancing to the Prince song “Let’s Go Crazy”. Universal Music Corp. sent a takedown notice and Lenz sued. Prince had set out to “reclaim his art on the internet” and Universal was taking down any content that used his music, regardless of the context. The work was judged to be fair.
The fact of the matter was Universal wasn’t considering if a use of Prince’s music was fair. Since they were removing everything, it almost didn’t matter whether a video was fair or not.
The ultimate point is that copyright holders must have “good faith” in their claims before issuing a takedown notice. This is what YouTubers point to when they say companies can’t send them copyright takedowns without considering fair use first.
The thing is, Lenz v. Universal Music Corp isn’t all that groundbreaking. The rule that copyright holders must consider fair use is in the DMCA already. This was just a case where a company wasn’t following the law, as proven in court. The case is said to have set a precedent, but it just restates what was already known. This is why companies haven’t stopped sending takedown notices. In fact, they’re sending them in good faith.
Rossi v. Motion Picture Association of America Inc. established that in order for it to be deemed that a copyright holder has acted in bad faith while issuing a takedown notice, it must be proven they were aware they were targeting non-infringing works. Ouelette v. Viacom International found that Viacom’s use of scanning software in issuing takedown notices on YouTube did not mean they were aware they might target non-infringers. It may seem similar to what happened with Lenz, but because there was no proof Viacom targeted non-infringers specifically as Universal had, there was “good faith.” Lenz was able to show that Universal acted in bad faith since it was attempting to remove every single video that utilized Prince’s music rather than just targeting infringers. Is this fair to YouTubers? No, but that’s how the law is set up.
So while Lenz has been held up as the precedent to judge all YouTube fair use cases, it might be better to give that honor to Ouellette. The issue is that it doesn’t side with YouTube content creators, so it’s often ignored by YouTubers themselves.
So the major case YouTubers have in their favor is a lost cause. However, the problem remains: plenty of work that could be deemed fair is still taken down as a result of the system in place.
Let’s explore a specific type of work protected under fair use that is common on YouTube, and see if the average video would qualify under the guidelines.
Parody vs. Satire
Can you even state the difference between parody and satire off the top of your head? There is a distinction: it has to do with scope and intent.
Parody is an imitation of a style of a particular writer, genre or artists with deliberate exaggeration for comedic effect. Satire is the use of irony, humor, exaggeration or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of topical/political issues.
While they’re similar, it’s important to know the distinction, especially because only parody can qualify under the fair use doctrine. For a work to qualify as parody, some of the original work’s style or content must be utilized to lampoon the material, while with satire it’s less than necessary.
Campbell v. Acuff-Rose Music, Inc. is credited with establishing that commercial parodies can qualify as fair use. The rap group 2 Live Crew produced the song “Pretty Woman,” a parody of the Roy Orbison’s, “Oh, Pretty Woman.” While the group’s request to license the original song from Acuff-Rose Music was denied, 2 Live Crew released the song anyways. Acuff-Rose sued and 2 Live Crew lost the case on the basis that the work did not meet the criteria of each of the four factors and that the commercial nature of the song hurt the potential market for Orbison’s tune.
The Supreme Court, however, reprimanded the case and cited the fact that a work’s commercial status is not the only factor that a court must consider when weighing the purpose of the use and that a work does not necessarily have to meet all four factors. 2 Live Crew’s sampling of the song, while the court agreed made up “the heart” of Orbison’s tune, was necessary as a parody is typically aimed at the heart of a subject it pokes fun at. “Pretty Woman” was deemed transformative in nature on the basis that the original work dealt with the admiration of its subject, while the new work demeaned its subject. The court ruled that 2 Live Crew’s use was fair and that parody would officially be protected under fair use….except when it isn’t.
As evident in the case of Dr. Seuss Enterprise v. Penguin Books USA, the use of parody that is defendable is very specific. In 1995, a parody of the OJ Simpson trial was released by Alan Katz under the title “The Cat NOT in the Hat”. It utilized illustrations that mimicked the art style of Dr. Seuss and included verses similar to that of Seuss’ writings. The Seuss Estate sued and Alan Katz cited that parody was protected as fair use and he was being unjustly targeted. The court saw things differently, noting how Katz’s work did not parody Dr. Seuss. Its use of Seuss’ work boiled down to comparing the trial’s ridiculous nature to that of a Dr. Seuss book. Comparing things to make a greater meaning is a function of satire, not parody. The work may still be called a parody, but it wouldn’t qualify as fair use. It would be fair use if Katz had used Seuss’ style to make fun of Seuss himself or his work. This is why 2 Live Crew won their case, the target of their ridicule was the subject of the original Orbison tune.
YouTubers walk the tightrope between parody and satire. I can’t count how many parodies of Robin Thicke’s “Blurred Lines” that are just thinly veiled middle fingers directed towards the original song. Those could easily qualify as fair use, yet there are just as many that don’t comment on the song or singer at all and just add jokes to the tune.
We can apply the same concepts that protect certain parodies to YouTube movie reviews. Using a clip from a film to make a joke about that specific film gets a thumbs up, but using a clip from one movie to make a joke about another movie would get a thumbs down. Comedic movie reviews are very popular on YouTube and a lot of them use movie clips to make jokes, such as those produced by #WTFU’s founder Doug Walker. That seems like a harmless use of copyrighted material to those who have grown accustomed to the YouTube format, I can’t think of any real harm it would do to the original work. However, when held up to the scrutiny of the guidelines it doesn’t hold water. This type of joke just didn’t exist before the DMCA so the law doesn’t accommodate for it.
That remains the key issue, the law doesn’t properly serve the digital world we live in. YouTubers crying foul aren’t wrong that something is wrong; they’re just wrong in assuming the law is set up to protect them.
Retrospect & Moving Forward
While fair use can be a great tool for those looking to utilize copyrighted material in their works, just because a certain type of media can be judged as fair doesn’t mean it will be. While it’s often written that fair use protects parody, commentary, scholarship, etc…, a better way to put it is that fair use can protect those forms of media.
While it’s still obvious the YouTube system doesn’t support its users as well as it should, it’s clear that many users fundamentally misunderstand the fair use doctrine and simply use it as an umbrella term for all the issues that plague YouTube. Laws and guidelines can be very tricky to navigate and often the simplest interpretation is what comes through to the masses, but that doesn’t mean that’s exactly how the law functions.
I can’t help but think we’d all benefit from either more concrete guidelines that lay down precisely what you can and can’t do or new copyright laws altogether. We haven’t had a major copyright update since the DMCA, and while it still accomplishes its primary job of protecting major copyright holders, it has inadvertently made it harder for new creators to flourish.
The laws serve corporations instead of the public; the broad nature of each law ends up restricting creativity; the time it takes for works to enter the public domain is almost undefinable since they keep extending it; it’s too expensive for smaller artists to defend themselves from rights holders and the law is too open-ended and complicated that it makes smaller rights owners unable to enforce their own copyright. Copyright law at the moment can only be described as draconian. As it stands, fair use is the only way around these laws and as elaborated, it doesn’t allow for much.
YouTubers don’t seem unfair in their defenses either. I’ve gone on about the fact that many of their videos wouldn’t meet the fair use standards, but I’m not exactly sure how any of them harm the original copyrighted material. In some cases the content even helps the original. “The Room,” arguably the most famous “so bad it’s good” movie, gained a major boost in popularity online when it was reviewed by #WTFU’s founder Doug Walker in 2010, and unlicensed clips shared on YouTube have helped increase word-of-mouth considerably.
I can’t think of an instance where I felt watching a YouTube video with copyrighted material would keep anyone from watching the original. It’s sort of like the music/movie piracy argument. The claim is that piracy hurts music and movie sales, but in general the people who pirate were never going to pay in the first place, so no profits are truly lost.
It also bears mentioning it’s nearly impossible to make a living off of YouTube. Sure, you see reports everyday about the millions PewDiePie makes, but think of that as something that only applies to a handful of YouTubers. Ad revenue is crap and that doesn’t even account for the fact that creators see little of the profits they do turn. Once a site gets as big as YouTube, profits get stretched thin and everyone generally makes less. YouTubers don’t even stand to gain much from using these clips in the first place, so how terribly can it really affect the original?
Does that mean all YouTube videos should qualify as fair? The answer is still no, but maybe it’s time a lot of them did. With a new digital frontier, we need new laws. As copyright expert Jessica Litman noted in a 2009 ABA Journal article titled “Copyright in the Age of YouTube”,
”History tells us that unless the [copyright] rules will accommodate their interests, there will be no stability…If the public does not see the rules as legitimate, they won’t obey them.”
Seven years later, it doesn’t look like we’ve made much of a difference. Here’s hoping that someday copyright law will be more than accommodating.
