Anyone have any US fair use law experience? YouTube takedown notice

[Troy]

We recently got a copyright takedown notice on YouTube for one of the episodes of the original “Cracking the Code” documentary series. We’ve obviously got our hands full trying to run a small business, but on the off chance anyone out there is a copyright lawyer, we wanted to run this by you.

Specifically, this is the second episode, “Rise of the Viking”, which Sony Music Entertainment flagged for a few seconds of “Mr. Crowley” in the discussion of the origins neoclassical metal. Note that in YouTube lingo this is not a “copyright strike”, just a takedown. Our channel remains free of any strikes, we just don’t have our video up.

After this many years running the channel, this type of takedown has only happened once before, on an Albert Lee video featuring a short segment of concert footage from the German TV show “Beat Club”. After writing a nice note to Beat Club’s YouTube channel emphasizing the brief and documentary nature of the work, and how it most likely drives viewers to search for their channel, the video went right back up a day later. Good on them. However in this case, after writing a similar note via the YouTube interface, we got an automated notification from YouTube that Sony Music Entertainment “denied” the dispute. So the video remains down.

I should note that I don’t have any concerns that the Cracking the Code series actually infringes anyone’s copyright. It is, after all, a documentary — one that uses brief snippets of music to explain historical trends in pop culture and guitar. It’s pretty much a textbook example of what US fair use law was designed to protect. If you care about being “transformative”, the vast quantity of fanciful music and animations we created for the series make it crystal clear that we are not just recycling other people’s work, even though we’d still be well within fair use law even if we didn’t have those elements.

In fact, years before we even started doing this as a business, I met with high-priced copyright lawyers here in NYC, and showed them early drafts of these episodes, and they were more than satisified with the fair use nature of the original series. Since that time, the explosion of videos that actually infringe, where people upload concerts and songs wholesale to the internet, only makes our work even more obviously about commentary and history by comparison.

So this is more a question of how we should respond to this. There is a button to “appeal”, but if I understand this correctly, this just bounces the ball back to Sony. It’s not clear to me why we would expect them to be any more sensible the second time around. Unless we think the first response was automated, and they just don’t have the time to bother. Apparently, if they ignore you for 30 days, YouTube will put your video back up. However if they deny you again, I think you get an actual copyright “strike”, which is a negative that we’d like to avoid. It doesn’t seem particularly fair to allow a clearly biased party to decide this.

Ok that’s the short (well, long-ish) story. Anyone have any US fair use law or YouTube experience? Let us know what you thik.

Thanks!

[GaryF]

Rick Beato has made some videos about his experiences with this situation on YouTube. I don’t have links handy but they should be fairly easy to find with some searching on his channel for videos containing “copyright” issues or something like that. He goes into it pretty deeply and I think his comments would be very helpful and encouraging for the most part.

[rlrhett]

I have had experience both with YouTube copyright issues and Amazon trademark issues, and unfortunately I’ve learned it has little to do with the law. I’ve had clients with valid trademarks rejected because they didn’t comply with some arbitrary requirement by Amazon; and like you, clients making obvious fair use of copyright for educational purposes that YouTube simply punts.

The truth is that YouTube has a policy to protect their big fish. If Sony says to take down a video, they take down a video. They have no interest in championing your cause or even listening to why SME may be wrong. Your only hope is to directly contact SME and have them OK the use, like you did with “Beat Club”.

Having worked as an attorney in the music industry and dealt with SME, I can tell you that there is absolutely no one at Sony, Universal, Warner, etc., who gives a rat’s ass about whether they are being fair to you. It would be a matter of pride to them not to respond to you. Their whole business model, personal identity, and sense of self worth is in their ability to collectively and individually control access to the market and audiences. They have a very different set of considerations than “Beat Club”. I don’t say that bitterly, it’s just a fact.

A less frustrating path would be to edit the video to include an example of you playing the Rhodes lick, or whatever you got the strike for. As you know, there are different laws regarding playing a clip of another player (performance) vs performing someone’s composition (sync). This isn’t the place for a technical discussion, but in general terms if you play the passage yourself you will be dealing with a different entity, and likely not SME (or its publishing branch). It is very unlikely the publisher will notice or care about a few seconds of you transcribing and playing a passage.

I also note that Mr. Crowley is all over YouTube. Can you find a video clip Sony doesn’t own? For that matter, Michael Palmisano has an hour long video where he plays again and again a live performance of Mr. Crowley. Perhaps you could reach out to him and see how he dealt with it.

Good Luck!

[Troy]

Thanks for the details! This is exactly the kind of expertise I was looking for.

I’m generally aware that doing covers is something an original copyright owner is less capable of stonewalling. But that’s not really possible in this case because the video is already up. True, we could edit it and re-upload it, but then we’d lose the view count and comments. The section of the song we use is a super brief bit of the chorus where Ozzy actually sings “Mr. Crowley”, so we’d have to change that as well.

Edit: YouTube will let you edit the video within YouTube’s editor to either block out the audio, or snip out those few seconds of the episode. We could do that without reuploading or losing the history. Obviously, we’d rather not bastardize the documentary this way.

More generally, this video has been up for years and only just now did we get this notification. We don’t know why. Maybe it’s some algorithmic update to YouTube’s content matching code that discovered our video. Who knows.

My question here is really more about what the process would be like for disputing this. As I understand it, if we click “appeal”, it just bounces back to Sony. If they reject that, then we get a “copyright strike” on our account. Which isn’t particularly fair. As you point out, this is all internal to YouTube, and not really a legal issue per se.

If that were to happen, what would be our recourse? Could we bring some type of legal action against Sony to compel them to leave us alone on YouTube and put our video back, and how would that work? My impression is that our usage is so conservatively within the bounds of what Fair Use was designed to protect, that I can’t really imagine a proceeding where someone would deem our usage to be infringing. Would that make it less expensive to pursue this in a legal scenario if it came to that? Alternatively, because this all takes place inside of YouTube’s sandbox, would any legal action have to be against YouTube itself?

I’m really not looking to become some kind of fair user crusader. Again, we’re a small business and our main focus is just trying to get by. But I obviously don’t appreciate being pushed around when we’ve done our level best to operate within what the law allows. In a theoretical world where cost wasn’t an issue, and where legal expertise determined that our usage is well within accepted norms, I would think the right thing to do would be to pursue some action that preserves our rights.

Let me know what you think.

[rlrhett]

Obviously, take what I say as general advice that may or may not be applicable to your situation. I recommend seeking advice from an attorney you retain specifically for that purpose. My suggestions should be considered simply general principals and good practices, not legal advice.

You should know that YouTube has two types of copyright infringement claims, a formal one required by the Copyright Act, and an internal informal one. They call the formal one a “takedown” or “strike” and the second one a “Content ID claim”. You can submit a “counter notification” in the case of a formal Copyright Claim raised against you, or “Dispute” an informal ID claim.

In the case of a formal copyright complaint, the applicable law (Digital Millennium Copyright Act) says that if you file a counter notification SME will have to show that they initiated legal proceedings against you or withdraw their claim within fourteen days.

YouTube’s informal mechanism is a lot less crisp and can waste a lot of time. You can “Dispute” the claim. SME then has to reassert the claim, then you “appeal” the claim. If after your appeal they persist, the process graduates to the formal copyright complaint process outlined above.

As for suing YouTube or SME, first you should know that one of the first paragraphs in your YouTube Terms of Service reads, “YouTube is under no obligation to host or serve Content.” The reality is that they can take down any video, for any reason, at any time. You have no right to be on YouTube. Ergo, no damages if they remove your video and no claim in court.

As for SME, there are vague state claims you could assert about “malicious interference of a business relationship” (or whatever they call a similar concept in your jurisdiction), but in my experience that is a $150,000-$250,000/two to five year lawsuit with the likelihood of success similar to suing someone for “emotional distress” because they criticized your haircut. If SME goes so far as to file a formal copyright takedown notice (a “strike” in YouTube parlance), you can conceivably seek damages in court IF you can prove they filed the takedown “knowingly making false statements”. Damage awards for “knowing falsehoods” in DMCA cases are so rare they are celebrated like holes in one at the Masters.

Realistically, you have three paths, some can be taken in parallel:

1. Pursue the dispute/appeal/counter notification process with YouTube. Be aware that the final step requires that SME put up or shut up. Those self important pr&*ks are playing with house money, so you may just trigger a pointless lawsuit against yourself just because someone at Business and Legal wants to impress their boss. On the other hand, there are several opportunities for SME to just let the time lapse, you win, they save face. They hassle you a little bit, make you sweat, then walk away when it turns into real work. From their perspective, what’s not to like?

2. Try to negotiate with SME to release their claim.

3. Modify the content.

[Troy]

Super, thanks for all the details. From your description it sounds like we’re still at the “informal” stage. There was no actual “strike” levied againt the channel, and there was an option to “dispute” — which we took — and now an option to “appeal”, which we haven’t moved on yet. I was going to say that the one exception to your description is that YouTube has taken the video down, however looking at the dashboard now, I think what they’ve actually done is “blocked” it. So it’s not visible publicly but we can still view it in our dashboard and edit it. I’m guessing this is not the same as a DMCA “takedown”. So that all still sounds like the informal/internal stage.

If I’m understanding you correctly, it sounds like if we were to appeal, SME’s only recourse would be to file actual legal action within a pretty short time period. I think that was what I was really getting at with respect to litigation. i.e. Not so much that we would actually bring our own action against them or YouTube, but at what point would things escalate to actual legal proceedings. It sounds like they would have to be the ones to do that, and we would then be on the defensive in terms of proving that our usage was not infringing.

How lengthy and expensive would it be to defend something like that? Is such a process similar to the “hole in one” analogy, or would this be a more straightforward process with a higher likelihood of being successful?

Again, not suggesting one way or another that we’d consider this, just asking about the general process and best practices, like you’ve said. I’m grateful we don’t typically encounter these types of situations, and that most creators in the modern era seem to understand that the kind of work we do is generally a positive that only helps spread awareness.