September 1, 2007
News: Independent film maker Christopher Knight made the commercial below to campaign for a local school board (he lost).
Afterwards, VH1 (owned by Viacom) saw Knight’s funny video, copied parts of it, and showed it on the VH1 show “Web Junk 2.o.” Viacom did so without asking for copyright permission from Knight. You can see the VH1 clip here. Knight heard about being featured on the VH1 show from friends, so he copied the segment about his video and posted it on YouTube.
So what happened next? Viacom sent a DMCA notice to YouTube demanding the removal of Knight’s video of the VH1 clip that features Knight’s video. YouTube complied and removed the video. Now, Knight is incensed. Here’s what he writes on his blog:
“That’s chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!”
Analysis: The DMCA has a provision to stop this kind of nonsense. Under 17 U.S.C. 512(f), a person who materially misrepresents that a work is infringing in a DMCA notice can be civilly liable for damages. So if a case is successfully brought against Viacom, it could be held liable (although damages might be somewhat difficult to prove). It’s also worth noting that, under copyright law, a defendant who infringes a third party’s copyright by using the third party’s copyrighted material to make a derivative work loses any right to claim copyright in the derivative work. Anderson v. Stallone, 1989 WL 206431, *9-10 (C.D.Cal. Apr 25, 1989).
We’ll see what happens. Knight says he doesn’t have the resources to fight a legal case. This is really bad PR for Viacom, so I expect it will do something to make the brouhaha go away. Maybe EFF will get involved?
July 27, 2007
News: The EFF gang is at it again. This time, they’re suing Universal Music Group on behalf of Stephanie Lenz for sending YouTube an allegedly improper takedown notice under the DMCA to remove video of her baby dancing to Prince’s “Let’s Go Crazy” for 29 seconds. (Complaint) (More)
Analysis: Fair use is always a difficult thing to predict because courts have a lot of discretion to decide however they see fit. And I don’t think there’s been any test case for fair use of background music in a home video. This one, though, seems to me to be a pretty strong case of fair use. The segment of Prince’s song is short and barely audible amid the ruckus created by the kids. It’s not substitutional of Prince’s song in any respect. Also, the song was used in one of those spontaneous moments involving a baby that all parents want to preserve on film to document their child’s growth. I think it would be similar to a news reporter showing a scene from a county fair and having (spontaneously) some live music being captured in the background.
June 29, 2007
News: YouTube apparently has given the Smosh boys (Anthony Padilla and Ian Hecox) back the 24 million views that were erased from their overall view count after YouTube removed Smosh’s most popular video involving a Pokemon lip synch (notwithstanding a strong parody fair use defense for Smosh). The video was removed after the copyright holder to Pokemon sent YouTube a DMCA notice.
The other big news is that Lonelygirl15 just got passed by Fueled by Ramen, an independent label.
June 18, 2007
News: Last week, I reported that YouTube removed Smosh‘s mega-popular Pokemon video after receiving a DMCA notice (for copyright infringement), notwithstanding a strong parody fair use claim for Smosh. Under the DMCA, a website has a greater chance of staying within the safe harbor (and avoiding copyright liability) if it expeditiously removes content identified by a copyright holder in a DMCA notice.
One of the fallouts of the take down is that Smosh lost over 24 million views to its tally, placing it back closer to lonelygirl15 — 56 million to 52 million. If you are not aware, Smosh and lonelygirl15 are No. 1 and No. 2 in total views on YouTube for amateur productions.
June 14, 2007
News: YouTube has removed Smosh’s mega-popular “Pokemon” video after receiving a copyright DMCA notice from Shogakukan Production Co. Ltd. The Pokemon video was the 4th most watched video ever on YouTube, with over 24 million views. To my knowledge, this is the most popular video ever removed by YouTube under a DMCA notice. By the way, if you don’t know who “Smosh” is, it’s a pair of 20-year-olds Anthony Padilla and Ian Hecox. They are the No. 1 Most Subcribed Director on YouTube, and they have the Most Views All-Time on YouTube of any amateur or user-generated content. Smosh, in other words, is the top of the heap at YouTube.
Analysis: This is a close, perhaps questionable, call. The Smosh boys did use the “Pokemon” theme song for their video, but they seemed to me to be parodying the whole Pokemon character, with a pretty over-the-top lip synch and use of Pokemon stuffed animals.
A parody fair use is permitted under copyright law, the only question is whether too much of the copyrighted work is taken. Unfortunately, that question is determined on a case-by-case basis. And, in this case, YouTube appears not willing to risk falling outside the DMCA safe harbor, so it chose to follow the more expedient path under the DMCA of taking down the video.
If you want to see if the video should be considered a parody fair use, I believe a version is still up on Veoh and probably elsewhere on the Internet.