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Parody, fair use, and takedowns: Assessing current real world issues

chibong

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I'm actually more concerned about takedowns on some of the music streaming sites since they represent a much larger portion of my income than YT, but the issues exist on YT as well.

I have an upcoming song that uses political speech samples in the context of parody (similar to Randy Rainbow's videos). I've been over the parody thing with a fine toothed comb including talk with an attorney, and have no doubt whatsoever that I am legally well within the bounds of Fair Use in this particular case, BUT...

... The fact that I'd win in court does me no good if it's been taken down via Content ID, DMCA complaint, or siimilar before it catches on and is no longer relevant by the time I go through the process.

I've been out of the YT community for a few years on other projects, so trying to regain a grasp of the current issues. What are the real world risks of such a video being taken down via some sort of DMCA complaint or similar? Is there anything in particular I can do to safeguard against such takedowns, or to assert legal rights in any such dispute?
 

chibong

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I've read the stickies, but looking for to get specific assuming valid and demonstrable Fair Use.

What is the current reality of takedowns when fair use can be proven? OK, so YT "tries" to honor Fair Use. What exactly does that mean, though? Assuming I have a compelling case that clearly demonstrates Fair Use, can I stop any takedowns? I fully expect to get sued. I don't care about that part. I'll win. I just don't want it taken down in the meantime as it will no longer be relevant in a few months. I was thinking of actually putting the word "parody" in the title just to drive the point home, but are there any steps I can take to ensure that it is not taken down WHILE I plead my case? Are those steps different for DMCA vs content ID claims? Anything I should be doing now that would either expidite any dispute, or ensure it stays up during dispute?
 
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UKHypnotist

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If it is claimed you would have the right of dispute; but you need to own the rights to what has been claimed. If on the other hand you get a DMCA Takedown Notice, your only option is a counter-notification.

As Fair Use can only be decided in a court of law, and YouTube's Counter-Notification process is not such a court, the most likely outcome of an attempted Fair Use CN would be...

"Dear [your channel name here],

Thank you for your counter notification.

Based on the information you provided, it appears that you do not have the necessary rights to post the content on YouTube. Therefore, we regretfully cannot honor your request. It has not been forwarded to the original claimant, and we will not be able to restore your video.

To learn more about copyright, you may visit YouTube’s Copyright Center.

Keep in mind that copyright strikes expire after three months, as long as you complete Copyright School.

We unfortunately are unable to assist further in this matter."

You see, Fair Use is not the same as owning rights in content.
 
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chibong

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I guess I don't understand what is meant by any of the info in stickies about YT doing their best to honor Fair Use. From that description, they're making no effort whatsoever to do so in any type of takedown.

By definition, no fair use claimant ever has "ownership" of what is claimed. What they do have is the legal RIGHT to use it... but never ownership (in the US, anyway). Unless I'm missing something, since the creator of a protected derivative work does have the legal right to use it, a rights holder that forced the takedown of such a work should logically be liable for legal damages if the creator of the derivative work can show loss of income as a result of the takedown.

I understand Google (YT) is a private company, and acts in their own financial and legal best interests without necessarily caring whether people have the legal right to post anything, and that their calculation most likely comes down to which party in such a dispute is more likely to drag them into a legal dispute, or other such concerns....

... but there's a disconnect here. A casual glance at YT reveals many perennially popular channels whose entire existence for many years now boils down to fair use. Clip review shows, reach channels, musical parody channels (using actual audio or video clips of the work being parodied) are not only ubiquitous, but they've received billions of views overall, and I've never seen one of those popular channels be taken down.

So which is it? Are they just consistently lucky that none of the tens of thousands of owners of content they've used has ever filed takedown notices... or is the sticky correct that YT does care about Fair Use... so those channels have all gotten notices, but they have been resolved?

FWIW, Randy Rainbow is the closest example of what I'm doing. Every one of his videos I've seen contains A/V clips of various politicians, etc in a musical parody context. They consistently receive millions of views, and I've never seen one get taken down. Many contain the original clip with no additional background music or anything, so I'd think content ID alone would catch it even if no one ever saw them. Is he just dodging bullet after bullet in that no one ever claims ownership, or is there more to this? Same for all the react channels, etc. They're just.... lucky?