A Fair Use case. Does Fair Use apply here ?

[KidCom]

Hi,

I upload a video of me talking over a portion of the Batman v Superman trailer #2 (the most recent one). Basically I replaced the dialogue with the one I come up with to make fun of the conversation between Clark and Bruce at the beginning of the trailer. The video was later claimed by "MC for Warner Bros." (I know Warner Bros owns this but what is MC here?). I disputed on the basis of Fair Use and got rejected (no surprise here lol).

Anyway I decided to read some more on the Fair Use and the four factors constituting it on Stanford website (sorry it does not allow me to put the link here but I will summary the content down below) and go through each of them:

1) The purpose and character of your use:

• Has the material you have taken from the original work been transformed by adding new expression or meaning?

• Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

>>>I replaced the whole conversation in the trailer with a new one that was supposed to make fun of the two actors playing the characters instead of the characters themselves, offering new info/insights/understandings (and make fun of it) on the public opinion towards Henry Cavill and Ben Affleck (and possibly Jesse) when the actors were given the iconic roles

2) The nature of the copyrighted work
"...Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels"
>>>Ok this trailer and the characters are fictional works. I may lose on this point.
"...you will have a stronger case of fair use if you copy the material from a published work than an unpublished work..."
>>>Yes the trailer is published worldwide.

3) The amount and substantiality of the portion taken
"The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the “heart” of the work"
>>>The piece I took is the beginning of the trailer - the conversation between 2 main characters. Whether it is the "heart of the work", it is debatable. But I will admit yes it plays a great part in the trailer (possibly the best part imo lol), but the dialogue and some scenes were totally replaced with my own. And...

"A parodist is permitted to borrow quite a bit, even the heart of the original work, in order to conjure up the original work"
>>>I read the sticky thread on Parody vs Satire, and I think my video falls on Parody. I use a piece of content (the trailer) to make fun of that piece of content in some way (the 2 actors who play Sup and Bat, who are obviously related to this movie)

4) The effect of the use upon the potential market
"Whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work"
>>>I cannot think of any reason why my video can create such impact. It was posted several days after the trailer, it mainly contains fun stuffs, it does not give the movie bad rep or anything (well maybe a little bit when I make fun of Lex Luthor character but come on not every single thing in a review/parody can be nice)

5) (Wait wtf there is a fifth one ?) Are you good or bad ?
>>>Well I am on the nice list of Santa Claus and gonna receive presents this year, so all good.

There you go. Feel free to offer your opinion on this. I hope my analysis is clear, and if it is correct, I will take this as the basis to dispute my work in the future.

Gonna send an email to WB Pictures on Youtube now...Possibly pointless, but I will give it a try.

 

[DJBenz]

IMO, yes this would absolutely fall under fair use, but I'm not a lawyer so my opinion is probably moot.

That said, if the video is claimed on a third party match that's probably the best outcome you can expect. I doubt disputing it further would yield any better an outcome. It is said sometimes that pretty much everything is automated up to the first dispute rejection, so taking it further *might* get a real human being to look at it and decide in your favour.

In my experience big companies like this aren't usually to be messed with. I once uploaded a movie trailer from Universal; it had been supplied by the UK publicity company working on behalf of the film, and I had permission to use it. I got an instant copyright strike from Universal, disputed it with proof of permission to use and still had it rejected. Spent six months with my account not in good standing waiting for the strike to expire.

 

[Tarmack]

Here's the thing about Fair Use. It is really only valid in a court room.

Fair Use is a legal defense against being sued for copyright infringement. As a result, technically YouTube has no obligation to apply fair use principles to content on the site because it is a private platform, much in the same way freedom of speech technically is not protected on YouTube either.

What you're running up against is a massive automated system, the DMCA and trigger happy employees on the Warner side. You're very unlikely to get YouTube's help on this one unfortunately, even though you may have a solid fair use case.

Now, that said, on the actual fair use aspect since I cannot watch your video at the moment. Read the sticky on Parody, just to get a good understanding of the difference between the legal definition of Parody and general humour. Your video might fall under Parody, but it might fall under Satire as well.