Recently, internet behemoth YouTube announced it was offering legal support to a “handful of videos” on their website which have been subject to “takedown” notifications under the DMCA. “DMCA” refers to the Digital Millennium Copyright Act, and generally if someone thinks their copyrighted material is being infringed upon through a YouTube video they can submit a “takedown” notice to youtube. More information on DMCA “takedowns” can be found here  and in this funny youtube video.

In their press release, YouTube provides several examples of videos which they believe represent “clear fair uses”. These videos include:

critical reviews of an allegedly racist and misogynist Mountain Dew commercial;
a political talk show variety video featuring footage of politician Mike Huckabee;
-a “remix” video wherein the creators use clips from “Buffy the Vampire Slayer” and “Twilight” in order to create their own narrative about gender roles in vampire films (because this is a thing now);
-a pro-traditional marriage group’s use of news footage and Perez Hilton footage;
-an ad created by the campaign for 2012 Republican Presidential candidate Mitt Romney which utilized video footage of his opponent (and current POTUS) Barack Obama.

YouTube seems to have selected some of its best contenders for fair use and decided to fight back against claims of copyright infringement. Clearly a flexible fair use policy is in YouTube’s best interest as it will allow more videos to be posted on their website. But is a flexible YouTube policy in the best interest of a copyright holder? The answer depends on whether you think there is value in free publicity, even if that publicity isn’t necessarily good. The underlying theme here is that all of these videos utilize copyrighted material in order to comment upon them. My take on this situation is that it makes complete sense for YouTube, from a business perspective, to offer legal support to defend the creators of these videos from allegations of copyright infringement. As anyone who has wasted the better half of an afternoon (day, week, month, life?) surfing through YouTube videos knows, a large amount of their content comes in the form of often-hilarious “reviews” of TV shows, movies, commercials, music videos, etc. A particular favorite of mine is the “Honest Trailers” series which features humorous trailers of your favorite movies (My personal favorite is the Robocop trailer-NSFW you guys!) I’m not even going to begin to do the math, but I would have to estimate that the combined views of every review, remix, political commentary video, and political ad contained on YouTube is somewhere in the gajillions. As you can imagine this is an extremely lucrative source of content for YouTube, so it absolutely makes sense that they would want to lend their legal support to these videos for the purposes of possibly creating favorable case law.

YouTube’s press release notes that the videos they have selected make use of existing content “in new and transformative ways that have social value beyond the original (such as a parody or critique)”. As you can see, YouTube has distilled the “transformative” test of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (see below) into a nice, clean sentence in their press release. But are the videos that YouTube selected truly “transformative” under Federal Copyright law?

Section 107 of the Copyright Act lists the following four factors to be used in determining whether someone has a “fair use” to use copyrighted material:

(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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Supreme Court has stated that the inquiry with regards to the first factor, above, is whether “the new work merely supersedes the objects of the original creation, or whether or to what extent it is ‘transformative’, altering the original with new expression, meaning, or message.” Campbell at 569. If you read no other court cases in your life, I would recommend reading Campbell. The Campbell case is both an entertaining and informative read that stems from a controversy surrounding the rap group 2 Live Crew’s parody of Roy Oribson’s famous song “Pretty Woman”-again, NSFW! The Court ultimately found that 2 Live Crew’s version of Pretty Woman constituted fair use parody because, among other reasons, it “substitut[ed] predictable lyrics with shocking ones to show how bland and banal the Orbison song is”. Id at 573. Ouch!

With respect to the videos that YouTube has selected as best exemplifying “fair use”, my personal opinion is that the Courts would almost certainly hold that the political videos are fair use due to our Nation’s long history and tradition of political discourse, freedom of the press, freedom of speech, etc. (For more thoughts on this here is an interesting article from the New York Times) With regards to the “remix” of Twilight and Buffy, I think there is a bit more complex of an argument. There’s no political speech argument to hide behind, so you’re dealing with a straight infringement issue. I admit I have never seen any of the Twilight movies so I am probably not the best authority on whether this video “transforms” the original content, so I urge my readers to watch the video for yourself and ask it is truly “transformative” of the originals. As you watch, bear in mind the Court’s guidance from Campbell:

“the central purpose of [the] investigation is to see…whether the new work merely ‘supercede[s] the objects’ of the original creation…or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. Campbell at 579.

So, now that you have read the Court’s definition of “transformative” and watched the Buffy/Twilight video, do you think it is “transformative”? Feel free to chime in with your opinions, but ultimately the answer will be left up to the Courts to decide.

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