I need some help friends

[MegaCrasher]

So, I have a rather weird situation here; I had a video blocked from viewing due to a copyright claim. This is the video, which can now be viewed due to me filing a dispute under the act of fair use which covers things like commentary, parody, reviews, criticisms, etc.

So I understand how the use of copyrighted material can make it so you don't make money off the video but you still can keep it up under the condition of the claimant monetizing it themselves. I have quite a few videos under that condition.

However, I want to say that this I believe was falsely blocked under copyright as my video did not get any views at first, which is strange because a lot of the videos I have, if it has copyrighted material in it, was still playable but just couldn't make money.

There are even direct reuploads of this same video that I reacted and commented on and they aren't blocked by copyrights or anything. Would anyone be able to help me out with a possible explanation of that please in case I missed something?

 

[TheSwedishTraveler]

All I can say it´s kind of a ****** up system, with some reactionists uploading the whole video they reacting on, and some people even steals the video and earns money from it without repercussions.

 

[Shehzad]

So, I have a rather weird situation here; I had a video blocked from viewing due to a copyright claim. This is the video, which can now be viewed due to me filing a dispute under the act of fair use which covers things like commentary, parody, reviews, criticisms, etc.

So I understand how the use of copyrighted material can make it so you don't make money off the video but you still can keep it up under the condition of the claimant monetizing it themselves. I have quite a few videos under that condition.

However, I want to say that this I believe was falsely blocked under copyright as my video did not get any views at first, which is strange because a lot of the videos I have, if it has copyrighted material in it, was still playable but just couldn't make money.

There are even direct reuploads of this same video that I reacted and commented on and they aren't blocked by copyrights or anything. Would anyone be able to help me out with a possible explanation of that please in case I missed something?

You have to argue that your content is transformative, if you are criticising the video/trailer then it leans towards fair use but reaction videos are different. Reaction channels are still being debated here is RWJ's court case on his channel to which he lost the court case but a lot of people feel that RWJ's channel doesn't fall under fair use as he just shows the video and cracks poorly crafted jokes in between. Just reacting to a video is not fair use. I worry that this court case will have false claimants use this case as an excuse to pop false claims. I've seen your reaction to pokemon xy&z movie trailer and providing commentary is good and I think that because you actually keep speaking about it even after the trailer is over is also good. The issue though is that fair use is not defined enough as of yet for reaction channels, channels like H3H3 actually criticize the video they watch adding new context instead of sitting there and having facial reactions or not providing feedback. This allows them to avoid that grey area of "is my video fair use."
I think you need to start taking more of a critical approach when your reacting as you actually have to be adding a new level of context from the original video hence transforming it. I'd also suggest having the video/trailer in the corner and your facecam being in fullscreen. This is a good video to watch if you need more help. Simply sitting there going crazy, smiling, saying that it's cool, going crazy and saying you cannot wait for the release is not enough. And there are just too many channels out there for them to claim all of them they may have just happened to come onto your video or YouTube's Content ID may have alerted them. Also make sure to check who is claiming your video as if they are not affiliated at all with the copyright material that you used then you can just refute it saying they do not own the copyright material therefore they have no right to be popping false claims, you can also refer them to DMCA Law if it is an actual false claim to try getting them to back off:
Section 506(c) states:
"Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500."
Section 512 (f) also further says that
"Misrepresentations. - Any person who knowingly materially misrepresents under this section... shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation" etc They also commit a perjury offence if they do provide a false claim.

Generally if you are actually helping the copyright owners market then they usually don't care and if you are reacting to a trailer most of the time they want you to do so as they want people to go see the movie, get hyped for the game etc. However it does not matter if you don't monetize your video you can still get a claim because some freeboot sites what they do is upload their reaction, get more views than the original video even if they don't make money from it. it is not benefiting the original creators market since the freebooters are getting the credit for it and also their website gets popularity from it. Therefore this is why you will still get a claim if you don't monetize your video as they can still argue it is still helping your channel out I guess and also because they have the right to do so because it is their content you are using after all. About the claimant monetizing it themselves, yes they can do so but not all of them will have the heart to let your video stay up but take revenue from it. You can message them to come to an agreement. At the end of the day there is no right or wrong in my eyes, the person who will win the claim is the one who is the most educated and can refute the claim as best as they can than but fair use should not be used as an excuse.

 

[Shakycow]

Here are the 4 factors in determining fair use:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Failing any one is a violation of copyright.

Since you play the trailer in its entirety, you clearly violate #3.

After watching your video, there's virtually no need to watch the original because you're only covering a very small portion. This makes it easy to argue that you're also in violation of #4.

 

[Shehzad]

Failing any one is a violation of copyright.

To clarify you can violate some of those factors and still fall under fair use, most videos violate factor 2 even let's plays violates it because factor 2 if you do not fall under it then courts focus on whether content is transformative enough for it to pass so the court will look at factor 1 most of the time if you fail to meet factor 2, 3 & 4. Factor 2 basically means if you use factual content rather than fictional material then you are more likely to fall under fair use "Using material from primarily factual works is more likely to be fair than using purely fictional works." All this means is that using creative content is less likely to fall under fair use therefore you cannot violate the factor as it is not saying anywhere that if you do not meet this factor then you violate fair use, courts refer to factor 1 when looking at factor 2 to determine/consider if you violate fair use.
I don't believe he is in violation of factor 4 as I have said most companies want you to get people exited for a trailer or provide something for it. At the same time he can get people want to go watch the movie since that is what a trailer wants you to do so he is helping their market as his reaction may actually get people who follows him exited for the movie (meaning more people go to the theater/ buy the product so more $ for the company) however not all companies believe this (especially Japanese companies) it is a dice roll in my eyes therefore he can definitely violate the factor depending on who it is the trailer belongs. However he is clearly violating factor 1 in my eyes as I have linked the recent court case it shows that even RWJ's videos are not transformative enough therefore his video does not fall under fair use if we go by the court rulings. RWJ won his first court case even though he violated factor 2, 3 and 4 and used copyright material commercially to make money from so you don't automatically not fall under fair use if you don't fall under some of the factors apart from 1 as this is where the focus generally will come from a court. RWJ lost after the appeal from the other party this year because again the courts looked at whether his content was transformative enough even though he was violating the other factors he did not automatically not fall under fair use when he violated the other factors, we can see here that the court ruled out his video was not fair use by looking at whether the content is transformative enough therefore you can definitely not fall under the other factors but you will then have to argue that your video does transform the copyright material and adds new context to it. He is also in violation of factor 2 as he is already using a creative piece of copyright content but he does not add a new substantial context to the video hence his video is not transformative and violates factor 1 again. Using non fictional pieces of copyright content is much easier to transform (e.g. reporting on facts). Courts will always refer back to Factor 1, they can violate factor 2,3 or 4 but courts will focus on if the content is transformative enough for the video to fall under fair use if he violates the other factors. DMCA Law states this for the four factors - "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include..."
"the factors to be considered" is an important quote as is shows that courts take into account all the factors it does not necessarily mean you violate fair use if you do not fall under some of them. Again another quote "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." Again "consideration of all the above factors" shows that courts will not automatically rule that your content is not fair use if you don't fall under one of them as they look at all of them to take into "consideration" whether the content is fair use.

 

[Shakycow]

I don't believe he is in violation of factor 4 as I have said most companies want you to get people exited for a trailer or provide something for it.

That is irrelevant and on a case by case basis.

While it's rare that someone would receive a strike for showing a trailer, it would be well within the companies rights to do so. It is far more common for trailers to be part of ContentID and become 3rd party claimed that way.

 

[Shehzad]

While it's rare that someone would receive a strike for showing a trailer, it would be well within the companies rights to do so. It is far more common for trailers to be part of ContentID and become 3rd party claimed that way.

Yes I agree with you all I was trying to say that all the factors are taken into consideration not just one of them. It is definitely the copyright holders right to file a claim, I even state this in my first reply "they have the right to do so because it is their content you are using after all." Copyright ID is probably how he got his video claimed again I say this in my first reply. That was just my opinion on factor 4, everything is debatable when it comes to fair use is what you need to realize and yes cases are all different because of the fact that the person who is able to debate it better and offer a substantial argument that their content is indeed transformative then that person the judge is more likely to be in favour of the person who can argue their case better.

 

[MegaCrasher]

Thank you guys for shedding some much needed light on this! :] honestly, I wish there wasn't such a gray area for reaction videos as to whether they fall under fair use or not. I think they should depending on how transformative your video is and since fair use covers things like commentary, criticisms, reviews, etc., I think my video should stay up, even if I get a 3rd party claim, that's more than fine because this video is meant to be fun and enjoyable as a huge Pokemon fan. Also, considering that this video was meant to be nonprofit, I don't see how that breaks rule 1; "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". Considering that not only am i not making money off of it as a nonprofit way of fun, there shouldn't be an issue with keeping the video up considering there are much larger youtubers who do the same sort of videos whether they be good reactions or dull reactions. As for rule 2; "the nature of the copyrighted work", i am fully aware of copyright and have a good idea how it works, meaning if you were to use copyrighted material without permission, that's a violation. However, this is where fair use comes in and again, with reaction videos being a very grey area with fair use, it should depend on how transformative the creator of the reaction video makes it meaning if it's going to make a significant difference in the video itself. As for rule 3, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", some can argue and rightfully so that this rule goes against things like reaction videos and even some response/review videos depending on how little or how much the person modified and transformed the video into something that involves their works/creativeness. However i would like to suggest that this is where fair use comes into account and should definitely be considered as to whether or not ones "reaction" should be considered as fair use. Now if you add more than just reactions like criticisms, reviews, commentary, etc., then there should be exception to the rule being rule 3. Now for rule 4, "the effect of the use upon the potential market for or value of the copyrighted work" as Shehzad pointed out, this could be considered promotion of a product and in this case being the movie coming up and it could get people really excited about the movie and will want to see it. I also site the link before and after the video so if they were to want to see it without my reaction, they can very well do so. The way I see it, if you watch someone get really excited over a movie trailer, wouldn't that give you motivation to possibly want to see the movie? Now i can understand if this was a movie reaction or even a show reaction how it could be considered a breach of a rule. I don't see how trailers would fall under that considering this is them promoting their products via trailers, so wouldn't it be beneficial for the company if there were the reaction videos to it to spread the message to their fanbases?

Please correct me if I am wrong in any of this as i want to make sure I've got all the facts straight. I'd like to thank you guys again for taking the time to help me out :]

 

[Shehzad]

Thank you guys for shedding some much needed light on this! :] honestly, I wish there wasn't such a gray area for reaction videos as to whether they fall under fair use or not. I think they should depending on how transformative your video is and since fair use covers things like commentary, criticisms, reviews, etc., I think my video should stay up, even if I get a 3rd party claim, that's more than fine because this video is meant to be fun and enjoyable as a huge Pokemon fan. Also, considering that this video was meant to be nonprofit, I don't see how that breaks rule 1; "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". Considering that not only am i not making money off of it as a nonprofit way of fun, there shouldn't be an issue with keeping the video up considering there are much larger youtubers who do the same sort of videos whether they be good reactions or dull reactions. As for rule 2; "the nature of the copyrighted work", i am fully aware of copyright and have a good idea how it works, meaning if you were to use copyrighted material without permission, that's a violation. However, this is where fair use comes in and again, with reaction videos being a very grey area with fair use, it should depend on how transformative the creator of the reaction video makes it meaning if it's going to make a significant difference in the video itself. As for rule 3, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", some can argue and rightfully so that this rule goes against things like reaction videos and even some response/review videos depending on how little or how much the person modified and transformed the video into something that involves their works/creativeness. However i would like to suggest that this is where fair use comes into account and should definitely be considered as to whether or not ones "reaction" should be considered as fair use. Now if you add more than just reactions like criticisms, reviews, commentary, etc., then there should be exception to the rule being rule 3. Now for rule 4, "the effect of the use upon the potential market for or value of the copyrighted work" as Shehzad pointed out, this could be considered promotion of a product and in this case being the movie coming up and it could get people really excited about the movie and will want to see it. I also site the link before and after the video so if they were to want to see it without my reaction, they can very well do so. The way I see it, if you watch someone get really excited over a movie trailer, wouldn't that give you motivation to possibly want to see the movie? Now i can understand if this was a movie reaction or even a show reaction how it could be considered a breach of a rule. I don't see how trailers would fall under that considering this is them promoting their products via trailers, so wouldn't it be beneficial for the company if there were the reaction videos to it to spread the message to their fanbases?

Please correct me if I am wrong in any of this as i want to make sure I've got all the facts straight. I'd like to thank you guys again for taking the time to help me out :]

Yh it is a very big grey area as I said fair use is always debatable your points do make sense but so do some of ours. I think the problem with it is that at the end of the day it is their content and even if it is a trailer they may want their YouTube trailer to grow more, therefore when you take a trailer show it in its entirety it means that people won't have to go and watch the actual trailer on their channel since you've shown it to them already so there is already an argument against you showing the trailer if they don't want you which breaks factor 4 (if they actually want their YouTube trailer to grow). To me I always saw your reactions as it helping their market honestly, I think my general rule is to always avoid the grey area. DMCA itself is not defined enough for reaction channels I believe and YouTube does nothing to help define it either. I think you should start adding more criticisms when you do your reactions as well as if you take an informative approach and make it look like so even if you go crazy it will help you avoid that grey area. It is a waiting game as of now for either a new court case against a reaction channel or for YouTube to make changes to their abusive claim system and start defining their factors more. This is what YouTube says on their myth for using videos for non profit
"Myth #3: “Entertainment” or “non-profit” uses are automatically fair use.
Courts will look carefully at the purpose of your use in evaluating whether it is fair, but the three remaining factors also need to be considered. Declaring your upload to be “for entertainment purposes only”, for example, is unlikely to tip the scales in the fair use balancing test. Similarly, “non-profit” uses are favoured in the fair use analysis, but it’s not an automatic defence by itself."
I've got a video going up about this soon, I'll link it in here when it's up but it basically repeats what I've just said.