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Fair Use by editing compilation videos from other people's YouTube videos???

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stan welks
Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 15, 2014 at 12:44:12 am

I have a hundred or so videos of my bird uploaded to YouTube, with some of my videos having over 500,000 views. I placed ads at the beginning of my videos with the intention that I might be able to earn some money at some point.

By chance, I just found one of my videos edited into a compilation video with other birds, that someone else uploaded to their channel. The video is a collection of other people's YouTube videos. The person has lots of compilation videos and places ads at the beginning of each one. I filed a copyright infringement claim with YouTube and the video was taken down within 24-hrs.

The person sent a counter claim that the video being used was Fair Use under copyright law because it is trans-formative in nature, uses no more than the original than is necessary, and has no negative effect on the market for the original work.

Well, I disagree completely, and am curious to hear what you think.

a.) I was never asked if the video could be used, and my consent was never given
b.) The video was edited from its original piece by maybe 20 seconds, so I have no idea where the person is coming up with it being "trans-formative" The best part was used by the person in the compilation video
c.) It does have a negative effect on the market for my original work because it is essentially stolen from my channel resulting in the loss of potential views/revenue for me.

I'm curious to hear your thoughts. Can you just go and take other people's videos, edit them down a bit, make a compilation video with commercial intentions and be within Fair Use??? Any suggestions on what I can respond with to the counter claim?

Thanks for any info/suggestions!



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Bob Cole
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 15, 2014 at 3:03:28 am

There are thorough discussions of Fair Use online. But from your description, this does not sound "transformative." That would require the usage to show a different meaning, from their particular usage of the footage. Your footage was employed as if it were stock footage - there was no "commentary" on your original footage.

There's a documentary about background actors which made "Fair Use" of notable feature films, because the clips were only long enough to show the background actors in the same shot as the big stars. That was transformative because it used feature film footage to "document" the proximity of these very poor background actors to the very wealthy movie stars.

Your birds are just being given another viewing -- nothing new or notable.

Not a lawyer,

Bob C


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Mads Nybo Jørgensen
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 15, 2014 at 6:27:38 am

Hey Stan,

Clearly someone wants to ride on the back of your success. As a minimum, they should have had the courtesy to ask you whether they could use the clip. Since you filmed it, the copyright is yours to have.

Two things that I would initially look out for in a counter argument against the "fair use" claim:
1) Did the other side give you a suitable credit for the clip used - i.e. on screen or in end roller. If not, then it is in my opinion a straight forward theft and have nothing to do with "fair use".
2) Are you and/or the other side earning an income from your YouTube channel? If so, there are a potential loss of earnings to take into account.

You are clearly concerned about the third party use of your clips and there are clearly a market where people want to watch those kinds of movies. For future protection you may want to consider offering your clips for non-exclusive sale through a stock library such as Pond5, shutterstock etc. This will give you an added layer of protection + a legal framework for which other organizations can access your footage, for a price, and use it accordingly. And you can prove loss of earnings, which will make any future claim more viable.

My 10p & like Bob, I am not a lawyer either.

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Mark Suszko
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 15, 2014 at 2:09:46 pm

I agree if as-described, it isn't transformative. Neither does it sound like scholarly commentary or parody. You might want to start watermarking your youtube footage in some subtle way, to help discourage copying.


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Veronika waks
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Mar 21, 2015 at 3:13:36 pm

i was doing my research on the topic of "fair use" and this is information i found and want to share with you
Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are:
1. the purpose and character of the use,
2. the nature of the copyrighted work,
3. the amount and substantiality of the portion used, and
4. the effect of the use on the potential market for or value of the copyrighted work.
ChillingEffects gives a good overview of the four factors, on which my summary below is based (italics indicate quotes from ChillingEffects).
FACTOR 1: THE PURPOSE AND CHARACTER OF THE USE
"This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public."
The key to this prong of the test is whether the use is (1) commercial or non-commercial, and (2) transformative rather than merely derivative. Non-commercial use of copyrighted material is much more likely to be considered fair use than commercial use, since particularly in video there is an established market for licensing material for commercial use. However, this does not necessarily mean that a commercial use cannot be fair use, but the burden of proof will be higher.
The most important part of this prong is whether the new use is transformative, which means that it must somehow alter the original work either quantitatively or qualitatively. "The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair." Even if a use does not necessarily alter the original in substance, if it does something to add a new meaning or message to it, it is still likely to be considered transformative.


FACTOR 2: THE NATURE OF THE COPYRIGHTED WORK
"The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright--only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair."
FACTOR 3: THE AMOUNT AND SUBSTANTIALITY OF THE PORTION DEFENDANT USED
"In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair."
FACTOR 4: THE EFFECT OF DEFENDANT'S USE ON THE POTENTIAL MARKET OF THE COPYRIGHTED WORK
"This factor is generally held to be the most important factor. This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists.
Deciding if your video is fair use
Code of Best Practices in Fair Use for Online Video, which lists the following six uses as being probable fair use:
1. Commenting on or critiquing of copyrighted material
2. Using copyright material for illustration or example
3. Capturing copyrighted material incidentally or accidentally
4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon
5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements





SEE COMENTS:
Very brief use of clips and sounds would usually fall under fair use, or possibly de minimus use, which means it's just too short to be considered infringing. I can't comment on your particular plans though.
the article is here: http://fairusetube.org/guide-to-youtube-removals/3-deciding-if-video-is-fai...


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Bill Dewald
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 15, 2014 at 2:30:00 pm

I wouldn't read too much into the counter-claim. The guy probably just searched "how to beat copyright claim" and copy-pasted the Fair Use stuff in - there's tons of sites that tell you to do just that.

It's not a legitimate claim.


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stan welks
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 30, 2014 at 1:05:56 am

Thanks everyone for your replies, sorry for not responding sooner.

UPDATE: I responded to the counter-claim with some of the useful information provided here and I didn't hear back regarding the matter until about 10-minutes ago. I just received the following email from YouTube:


We received a counter-notification under Section 512(g) of the Digital Millennium Copyright Act in response to a complaint you filed with us. In accordance with U.S. law, we have reinstated the following URL(s) to YouTube:

If you would like to pursue this matter further, you will need to work directly with the uploader or obtain your own legal counsel.

Regards,

The YouTube Copyright Team



I am VERY upset and confused. How can someone just take other people's videos, provide no credit, edit the videos slightly without changing the meaning, provide no commentary, no parody and the videos are not for education, the stolen video competes with my own video since we both have ads on them, and this person gets away with it???? I was very clear when I responded that I was NEVER asked for permission, did not receive credit, they are competing with my own videos, it is not Fair Use, and I do not consent to the video being used.



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Mark Suszko
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 30, 2014 at 4:03:22 am

Stan:

At this point, you have to do the math where x is the amount you're willing to spend to pursue this further, including the value of your time, the cost of the paperwork and legal representation, and Y is the amount of money you're losing because of this pirate. If X is not significantly less than Y, learn to live with it, and take steps to cut them off from being able to steal any more.

If the pirate's site has comments enabled, keep up a drumbeat of accusatory messages with links to the evidence of you "prior art".

Pull all your vids and replace them with versions that have a transparent watermark across a key area, such that it would be obvious if someone were to try and crop it out or superimpose a logo over it. At least do this for all your new vids.


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stan welks
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 30, 2014 at 4:20:54 am

Hi Mark,

Thank you for your insight.

It is not worth it for me to get a lawyer, I guess I'm just really upset that this guy is able to continue what he is doing and Google/YouTube is allowing it. It boggles my mind.

Are you suggesting that I can replace my current videos with updated versions with watermarks without removing the views and comments that are currently there, or do you just mean that I should do this with all of my future videos?

Thanks again.



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Mark Suszko
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 30, 2014 at 5:44:32 am

If you pull the original videos and replace them with watermarked versions, yes, you're going to lose everything attached to those. Scorched Earth. Square One. That might be a little too drastic for you, so probably just going forward, do the watermarking, and also, put a very plain copyright and origin notice in your description, showing the date you made and posted these, and stating that they are not free to re-use without your written permission, for any purpose.

I woud use a translucent glass-style watermark text line and put it all the way across the screen at a little above the one-third mark. It need not be very tall to be effective. It just has to be in a place where cropping it out, or blurring it, totally ruins the video for viewing. You could also put your copyright info in the closed-caption track and those pop-up notes features people sometimes use to annotate the video. If anybody comments on it, you can comment back that so-and-so pirate drove you to have to do this by appropriating your content.

In the old days, some video companies would hide a tiny graphic and copyright notice in the underscan area of a video frame, where normal viewers wouldn't see it, but any engineer could make it visible in court with ease. Nowadays, you would have to put that in a metadata part of the signal, I don't really know how to do that.

You can't really stop a determined pirate from making a copy; the best you can do is make it more work than it's worth to them, and make their copies look less good than your originals.


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Mads Nybo Jørgensen
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Aug 30, 2014 at 7:57:02 am

Hey Stan,

My opinion:

That is a perverse. However, "The YouTube Copyright Team" is not necessarily their legal team. Hence why this is by far not a shut case on their behalf. In any case, your email may very well have been written by a night-worker in a "call-center" somewhere very cheap and remotely, who is dealing with 1000's of requests everyday. Even though they have tried to fob you off with suggesting that you sort this out with someone else, they are as the main distributor of you pirated content very wrong in that assertion.

Mark's comments are very valid - how much money and much scorched earth do you want in order to achieve your goal?

Keeping in mind that YouTube is no longer the most watched video site in the US, and that it may not even be the place where most content are enjoyed, you may want to consider moving all of your videos altogether?

Before doing that, you could write a passionate plea to YouTube's boss, which can be found here: http://ceoemail.com/s.php?id=78435 copying http://ceoemail.com/s.php?id=9931, quoting "Don't be evil".
And use the line within the mail "to save legal costs".
You should also copy in Google's main legal department - all of these guys are on a much higher pay-grade than the YouTube copyright team. But do keep the email as short as possible and be clear with what your grievances are.

It will also firm up the minds at YouTube as to whether they in your case have made the right decision. Keep pointing out that the other user have given no consideration to your copyright and have offered no credits, and that this is why you want it to be removed.

You may look around for a no-win-no-fee firm that would like to take on your case - but this kind of action will wear your nerves thin, and can last for years, in which time you are not doing what you love doing.

Setting aside the moral issue: If you have a larger number hits on your videos, than the person doing the copyright infringement, then Google should take better care of you.

If YouTube does not respect your Copyright then you must consider moving your videos to another host, there are plenty out there such as Vimeo and Facebook. But as I said above, the YouTube person writing to you, is likely to have a mountain of requests and therefor haven't taken the time to understand yours.

You should also consider the previous suggestion of adding a monetary value to the clips by putting them on a stock website for other producers to purchase. Most sites will allow you to decide the price, so if it is high enough, you won't sell many...

All the Best
Mads

@madsvid, London, UK
Check out my other hangouts:
Twitter: @madsvid
http://mads-thinkingoutloud.blogspot.co.uk


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Bob Cole
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Mar 21, 2015 at 9:01:06 pm

Stan, it's been awhile since I've seen this thread. I'm sure a lot of us are curious as to what has happened. Also, could you give us enough information to see your video(s), as well as the videos that have made use of your footage?

Thank you.

Bob C


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pascal tettero
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Sep 16, 2016 at 2:00:08 pm

i think if there is no watermark in it or a name then it's no copyright because there is no proof you made it.
2nd look at all the compilation video's they never get claims, but do get a million views..


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Bob Cole
Re: Fair Use by editing compilation videos from other people's YouTube videos???
on Sep 16, 2016 at 4:40:44 pm

[pascal tettero] "if there is no watermark in it or a name then it's no copyright"

Sorry, this seems like nonsense and I have to stand up for Stan and others who've been stolen from.

To take your analysis to its logical next step: If I post a video on YouTube, with my name and copyright info in the credits and in the sidebar information; and someone copies the video, but edits out the credits, then he has violated my copyright. But then, if a second person copies the copied video, he has not violated my copyright?

That's not how the law works with stolen goods; they go back to the original owner, no matter how many times they've been resold.

Here's my usual disclaimer: I'm not a lawyer. (Are you?)

Bob C


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