It seems we need to go over this copyright thing again. The movie studios seem to think that copyright only applies to them and they get to make the rules (when it favors them but that comes in next weeks installment). This is wrong. Very wrong. How many of you are familiar with the term “Fair Use“? Fair Use means that we, all of us, have the right to use a copyrighted work without compensating the copyright holder in a specific and limited scope. You can use parts of a movie, a book, a song, a video game, a painting… anything for the purposes of satire, criticism or reporting. The official and legal definition of Fair Use from the US Copyright Office is as follows:
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes The nature of the copyrighted work The amount and substantiality of the portion used in relation to the copyrighted work as a whole The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
This means that under Fair Use you can make your own video which points out the plotholes in a movie, accuses a director of being a plagiarist, argues that a song sucks, judges a painting on it’s merits or any such thing. It means that you can USE the copywritten material in a limited but FAIR way. Now, the sticky part is just what constitutes fair. What if the critic uses an hour of footage from a movie that is only an hour and half in length in his review of it? Is that Fair Use or is that too much? How about if a music critic uses 2 minutes of a 3 minute song, is that to much to be considered Fair Use? The general rule seems to be that if you use over one third of a video/audio work that you are pushing it but this is a fuzzy area as every court will see it differently. With my well established views on Copyright being used as a basis here I personally tend to go with that one third viewpoint as being fair. Yes, 20th Century Fox owns Alien 3, but I sure as hell have the right to show relevant clips to illustrate how much a steaming pile of vaginal discharge that it is… not that they see it that way though. The movie studios, for just a small example, don’t like to acknowledge Fair Use at all. Fair Use does not exist to them. They consider even a single frame or a mere second of audio from their properties to be so sacrosanct that Fair Use is just some term you made up right now this very minute. They love to attack people that have a legitimate, and yes I will make the pun, FAIR case. They like to do this with so many lawyers that you quit fighting, that is the strategy they implement. They love to claim bullshit statutes and drown you in legalese to frighten you into just admitting that you did a wrong and to then beg them for forgiveness. They love to ignore your legally given right of criticism in their ongoing fight to control the media. They want your money but you better goddamn not criticize what you just spent it on. Hell, look at that FBI warning at the start of any video or DVD, that clearly states that NO PART of the program can be used in any way… which is ignoring Fair Use at it’s very core. This is meant to scare you and keep you ignorant of the law. That FBI warning is not legally binding (despite their assertion otherwise) and should be challenged as a very part of your nature.
They love to hammer away at the concept of Fair Use with these intimidation tactics (and make no mistake, that is what they are doing). Just try to put a clip from The Simpsons on youtube and you will get nabbed by a bot before the video is even posted. 20th Century Fox outright says that no part of The Simpsons may be used for any reason, thereby nullifying the very concept of Fair Use. They have shut down Simpsons webpages, Simpsons fan pages, gone and threatened people that use Simpsons pictures for avatars on forums and even gone after videos that use a single clip of a Simpsons property… even just the logo. So why does no one fight 20 Century Fox on this? Why does youtube remove anything Simpsons related from it’s site? Because the very threat of a lawsuit, just the threat, keeps companies like youtube from being what they claim. The threat of a lawsuit is strong enough that the actual LAW itself is meaningless. In the mind of a company it goes like this; why fight over something like allowing users to post FAIR USE clips of things when 20th Century Fox can keep us in court for a decade? Why fight for a principle when all it will do is cost us money? Youtube claims to be this equalizer on the net where anyone can post anything they please; but they are not. They will remove a video (and penalize the poster of said video) on the mere ALLEGATION that something they posted is a copyright violation. They will not investigate to see if the post is indeed a violation or even if the person/company actually has the right to make such a claim, no, they will just ASSUME that YOU are in the wrong and side with the filer of the allegation. Right or wrong you lose. You do have the right to appeal a claim such as this, but guess what? YOU have to do it. YOU have to present case law that supports your claim. YOU have to jump through a ring of fire to even get into the appeals process, not the person/company that got you into this, no, YOU have to wage an uphill battle against a company with bottomless pockets all in the tiny hope that youtube will side with you over a company they do business with. Think you will win? Nope, only about %20 of copyright cases that go to appeal through youtube actually get reinstated. In fact most people just give up and don’t even fight on as what do you win really? You get to put up that video that the accusing person/company will just RECLAIM that is a violation so you can do it all again (yes even if you win, they can just file another claim against you)? The cards are stacked against you my friends and the companies know how to use and abuse that system the same as they always have. History is written by the victor right? On the off chance you win your appeal you still have a shaming to go through, you don’t just get reinstated, no, you have to take a “Copyright Class” online that shows you exactly what is legal and what is not (most of which is bullshit as this class, yes I have taken it, disregards Fair Use in it’s entirety). You play by their skewed rules or you don’t play, that is how it works. Welcome to the system, you are not in control, you were never in control and you never will be. Accept it.
The companies like to ignore Fair Use when they don’t like what you have to say about them too. Miramax tried to sue Mike White over his “Who Do You Think You Are Fooling?” video essay that outed golden boy Quentin Tarantino as the plagiarism poster child that he is (the story of a robbery indeed). It didn’t work though, in one of the great, and unfortunately rare, instances where the little guy won they were not able to get “Who Do You Think You Are Fooling?” removed. Unfortunately I have recently come under fire as well, surprisingly not for anything I have said here but for a documentary I narrated. You can watch it here. Columbia Pictures seems to think that this is a copyright violation and does not constitute Fair Use… which it clearly does. Go back up there and read the LEGAL DEFINITION OF FAIR USE FROM THE US COPYRIGHT OFFICE. This documentary falls squarely into that definition (in multiple categories I might add) but alas youtube did not see it that way and WILL NOT EVEN ALLOW A FAIR USE CLAIM. Yup, you read that right, youtube has decided that Columbia was so in the right that we were denied even the option of a counter claim, we were just shut down and the entire Robocop Archive channel was eliminated. My message to Columbia Pictures reads as thus: “Eat the peanuts from my shit you pathetic little child company. Youtube was scared of you, I am not. This video will win a legal case of Fair Use if it comes to that and therefore I have put the video back up and I will fight you in court if need be to illustrate that Fair Use exists despite your wishes otherwise!”.
Next week I will show you how the companies that hate Fair Use will use it against you when they can benefit. It’s okay when they do it you see…