YouTube Fair Use Copyright Challenge
Challenging a YouTube Fair Use Copyright Challenge: A New Experience
Those of you who know me know that my sudden surge of interest in all-things-online–you know–the things that everyone between the ages of 5 and 40 have adopted as fundamental to life in the same way that I have come to take for granted such things as refrigeration, telephones, and reasons to be cynical. But now I’m involved in a crash-course in everything it means to be “engaged,” and it’s been an interesting ride. Specifically, I’ve had to deal with my very first YouTube Fair Use copyright challenge, made on behalf of Universal Pictures .
I put up that clip from The Jerk starring Steve Martin–a movie that is now almost 40 years old–and within minutes YouTube had it marked as containing copyrighted material (a point against which I have no argument). Universal Pictures, in fairness, has allowed clips of its intellectual property to be used on YouTube, but it insists on monetizing those clips with ads. I checked, and sure enough, my little, illustrative point made via The Jerk had a distracting ad thrust upon viewers about halfway through the clip’s 38-second duration.
I wasn’t angry, but by God, I was annoyed. I was annoyed that a 38-second clip from a movie that runs 1 hour and 44 minutes and was released in 1979 would not trigger a presumption of fair use, but instead would automatically be monetized with a big, fat ad that all but ruins the effect of the short piece. So, below is my response to the copyright claim. I’m not saying that I know my arguments are 100% sound (although I have others I could have used, but didn’t, because I didn’t think of them until later) or that I have no doubts that my appeal will prevail, but it’s here for you to enjoy, if you’re into that sort of thing.
Ron’s Fair Use Argument Submitted to YouTube for Review by Universal Pictures
Hello,
I have reviewed the four factors of fair use supplied to YouTube users, and I believe that I have a valid claim of fair use of this clip based on considerations related to items 1, 3, and 4 as enumerated at https://www.youtube.com/yt/copyright/fair-use.html. I will elaborate on my claim using the same numbers for reference.
1) The clip is not monetized by me or otherwise used for commercial purposes. I am using it on my personal landing page at http://www.ronflemingwrites.com; however, that site is not monetized. It serves as a repository of my professional credentials and includes a blog. Moreover, an argument could be made that my use of the clip is “transformative” in that I have taken a sentiment expressed in the copyrighted work and appropriated it for a purpose other than the one depicted in the original work.
3) My clip is 38 seconds long, from a movie with a running time of one hour and 44 minutes. The clip cannot be said to represent the “heart” of the copyrighted work, and the portion used by me amounts to less than one percent of the whole. Expressed differently, my clip constitutes six thousandths of the original copyrighted work.
4) My clip is unlikely to affect the potential market for, or value of, the copyrighted work, except perhaps positively. It is used with expressed admiration for the original work and applied in a manner that I would argue has more potential to benefit the copyright holder than it could benefit me. In a manner of speaking, it constitutes “free advertising” for the copyright holder in that it glorifies and promotes the original work more than it enhances anything from which I could gain. The original work, which is nearly 40 years old, could potentially benefit from revitalized interest when one considers the manner in which I used my 38-second clip.
Thank you for reviewing my claim.
Ron Fleming
Universal Pictures Responds: Denied, with No Further Comment
It’s true: they really just reasserted their original claim, which wasn’t their claim anyway, but rather YouTube’s tech flagging material on their behalf. So they have offered nothing of substance to which I could respond. Accordingly, I responded with the following:
Hello again,
I am writing to dispute Universal Pictures’ rejection of my assertion of a Fair Use claim regarding the 38-second clip I used from their copyrighted work, The Jerk, which was released in 1979. Because their rejection of my claim was issued without review or comment, I am essentially relegated to a restatement of the claims I made in my original dispute. Those claims are therefore incorporated herein by reference. Any substantive response should address them as well as those made in this amended restatement of my original challenges.
While I believe the claims made in my original dispute stand on their own merits, I will nevertheless add a few additional points to consider that I believe weigh in favor of my Fair Use argument. They are, again, numbered according to the four-prong test as published by YouTube at https://www.youtube.com/yt/copyright/fair-use.html and at http://www.dmlp.org/legal-guide/fair-use.
- According to the legal analysis offered by the Digital Media Law Project (DMLP):
If you merely reprint or repost a copyrighted work without anything more . . . it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use. [emphasis mine]
My YouTube channel, which hosts the clip in question, includes the following commentary on the clip:
My favorite scene from The Jerk, this is what plays in my head every time I feel somehow “acknowledged” in a new, positive or neutral way. I’ve built websites before, but never one that was entirely my own. This is how I felt when Google sent me an email informing me that http://www.ronflemingwrites.com was officially indexed on their servers.
A little silly? Sure. I don’t care, though. It’s nice to be on the map, even if you’re just an iceberg that relatively few people will notice.
Moreover, on my personal site, where the clip is streamed on the landing page (I should note, with the intention of leaving it up for no more than two or three weeks at most), a mouse-over event reveals the following commentary:
A favorite scene of mine from The Jerk, this is how I felt once I was officially “on the map.”
I argue, in addition to the arguments originally made and herein incorporated, that my use of the clip “comments or expands on the original material” and therefore satisfies the first prong of the Fair Use test.
3) Again, quoting from DMLP:
If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.
It is clear from my use of the clip that this point in the third prong is satisfied. I used a small portion of the copyrighted work—0.6%, to be precise—to express only my excitement at being “recognized,” and the exaggerated manner in which Steve Martin’s character did the same in the scene in question served that purpose well with minimal use of the copyrighted work.
4) I have little further to argue on the fourth prong, except to emphasize again that my use of the clip is arguably more likely to have a positive effect on the market for the copyrighted work than a negative one, as it is cast entirely in a positive and admiring light. Again, quoting from the analysis at DMLP, “The fact that your use creates or improves the market for the original work will favor a finding for fair use on this factor.” However, it is also true that
This fourth factor is concerned only with economic harm caused by substitution for the original, not by criticism. That your use harms the copyright holder through negative publicity or by convincing people of your critical point of view is not part of the analysis. Id.
My influence on the market for The Jerk, however fervently pursued, is likely to be all but immeasurable, whether my commentary on, or use of, the material is favorable or unfavorable. It remains true, however, that were I to extend my comments on the clip as commentary qua commentary as opposed to using it in a favorable way that aids an exaggerated expression of excitement, I would be fully protected under the law governing Fair Use, without consideration to the effect that expanded use might have on the market prospects for the copyrighted work. To state the point differently, a full-scale negative criticism of The Jerk that makes use of multiple clips and achieves wider distribution than that which I intended for the clip in question, would enjoy full protection of Fair Use law. It happens, however, that I enjoyed the movie and that I find the particular clip in dispute here both funny and evocative of nostalgic feelings. I urge Universal Pictures to consider the positive use of this small clip before asserting any further claims of copyright infringement.
This concludes my response to the reissued challenge of the copyright holder. I have thus far submitted two carefully reasoned arguments in favor of my Fair Use claim regarding the clip. I hope that Universal Pictures reviews the substance of my arguments in this round of dispute instead of reflexively dismissing it. If there is a substantive challenge to the reasoning offered here and in my initial dispute, I am eager to hear it.
Thank you,
Ron Fleming
Note: YouTube’s system for disputing disputed disputes of disputes isn’t like its system for disputing disputes. Instead of asking for a cohesive narrative like the one presented here, it requires that you address the “four legal points” that are evaluated in Fair Use claims. Therefore, I had to copy and paste from both letters separately to address each point.