Fair Use, Takedowns & Aging Gracefully on YouTube: Q&A with Attorney Jody Simon

Jody Simon got his show biz start the old-fashioned way — working his way up from the mailroom at the William Morris Agency in New York to desks in its theatrical and publishing departments. But instead of staying on the talent agent track, he left to attend Columbia Law School.

Over the next quarter of a century, Simon amassed extensive experience in traditional television, with specialties in unscripted TV and Canadian and international co-productions, as well as digital media, with mid-2000s ventures such as GoTV Labs and Ripe Digital Entertainment.

Today, Simon has sharpened his focus on the streaming video space, with a client list that includes YouTube stars such as vlogger Meghan Camarena (Strawburry17) and movie reviewer Grace Randolph (Beyond The Trailer), anime OTT service Crunchyroll and We Are The Mighty, a multi-platform network focused on members of the military, veterans and their families and friends.

“I’ve been steadily working digital, but I made it a real focus of my practice in the last three years, because you can see the writing on the wall,” said Simon, a partner at Fox Rothschild in Los Angeles, where he chairs the production company practice of the entertainment law department.

Simon spoke with VideoInk about the challenges of navigating the vagaries of fair use, dealing with YouTube Content ID takedowns and the challenges of aging gracefully on YouTube.

People seem to be very confused about how much outside copyrighted footage they can use in their videos via fair use. Are there any hard and fast rules?

The truth is, there are no rules. There are guidelines. The copyright statute has fair use factors, and it’s a balancing test, and it differs among media.

With a movie reviewer [on YouTube], it’s a little easier, because you’re definitely commenting. What’s weird is that the movie studios are mostly fine with it. For one thing, the trailers are advertising for the movies, so it’s just expanding [their campaigns]. Plus, it’s pretty clearly fair use. But my client Grace Randolph got a takedown from the company that had furnished the music that was in the trailer, which was not music from the movie. It was composed for the trailer. I contacted the company and they said, “It’s okay. If it happens again, give me a call and we’ll straighten it out.”

But if it had been Joe Schmo creator — instead of Grace Randolph with you as her as the attorney — he probably would’ve been out of luck.

Yes, that’s true. And then you can’t monetize the content. And it’s completely unpredictable. You put a trailer up and [YouTube’s] Content ID tags it, and the next thing you know, you’ve got a random takedown.

Do you think YouTube should be handling it differently?

I think the system actually works fairly well, to tell you the truth. They’ve developed really sophisticated technologies to help spot the infringing stuff, and when the copyright owners get a hit, they can order a takedown or they can just take over the monetization, which isn’t ideal. On the one hand, the video stays up. On the other hand, they’re the ones making the money on the ads instead of the creator. It’s a work in progress, but if the solution to go back to making YouTubes of the world responsible, I don’t think that’s really practical. It will just stifle things too much.

Is working with YouTubers different than handling traditional show business talent?

I’ve never really been a talent lawyer, but I love repping influencers, because, yeah, they’re on-camera, but they’re constantly creating, they’re not just waiting for the jobs to come. They’re kind of responsible for their own brands, their own content — the good ones.

The first generation YouTubers are not so young anymore. Do you think they’ll be able maintain their audience and their careers as they age?

They’ll clearly have to adapt their content, because what appeals to a 14-year-old is not going to appeal to a 24-year-old. It’s obviously a young business, but you think that once you establish an audience, you’d be able to hang on to it for more than three years.

There’s been endless spilled ink about millennials being cord-nevers. I guess some of them will start watching TV when they have families, but probably a lot of them won’t, which means the medium is going to grow with them. Then, of course, OTT will be a natural. The truth is, the definition of what constitutes entertainment has changed a lot. Who would’ve thought that some kid sitting in his basement talking into a webcam would actually be a totally legitimate entertainment medium. So there’s this whole new genre that’s been invented. It’s kind of cool.