videlicet

1. lim vs YouTube: Story of a Copyright Dispute

If you’re a Youtube vidder, you know about Content Id. Content ID matches me every time I upload, and if I use a longish clip with no VFX, I’ll get something like this email:

And then I dispute the claim and put in something like:

The use of the copyrighted material is justified as fair use because it is (a) transformative and (b) does not adversely affect the market or potential market of the original work or derivative works. “Fanvids” like this have been held up as exemplars of noncommercial transformative fair use by many noted legal experts and media scholars. source

And then they (ZOOM) lapse the claim:

And that’s how that goes, right? Well sure! Except in February I finished my insane, HUGE, Peaky Blinders vid. Now, I didn’t expect, basically, ANYONE to watch this vid. It’s nearly ten minutes long. It’s got loads of ‘orrible stuff in it - suicide, rape, murder. It’s to an old (amazing) song. It’s for a tiny fandom. So I knew no one was gonna watch it but I just HAD to make this vid, you guys. I HAD to. I made it for myself and I posted it to find the nine other people in the universe who feel the same. Such is fandom! But… I did, actually, want those nine people to see it, you know?

Anyway so I posted my vid and got dinged before I even published.

I briefly disputed as normal and waited.

And waited.

And waited.

They checked with themselves, guys, and they found out that they were actually definitely right! Totally.

It’s a good thing we have these checks.

And then I clicked that button and brought up THIS form:

So this next part is worth knowing. If you are in the US you get the first form. Once you change to the UK (or presumably any other non-US) - and they are gonna ask for your real life info here so you have to choose the real one- the form changes.

And if you’re in the UK? FORGET EVERYTHING YOU KNOW ABOUT FAIR USE!

All the stuff online is about fair use. It’s about transformative works. The OTW, who helped me with all this, is named AFTER the transformative defence in fair use. But there’s no such beast as “fair use” in UK law and there’s no transformative defence. It’s all different. So get familiar with FAIR DEALING. → skip all this wank and go straight to fair dealing section

You will have as much luck asserting a transformative defence on this next level form as you will asserting your miranda rights to a bobby in a tit hat. :P

So anyway at this point I started shitting it a bit obviously. I started taking screenshots (for you lot, because these forms aren’t viewable unless you go through this process for real). And I thought I needed some backup. So I called in the cavalry!

Rebecca Tushnet! Naomi Novik! Francesca Coppa!

They watched the vid, put their heads together and wrote the next appeal. It was properly massive:

This vid, “Horse,” constitutes a fair dealing both as a caricature and as a criticism under UK law. “Horse” is a noncommercial work that uses a very small portion of its original source material (10 minutes of footage carefully selected from the 12 hours of the television show Peaky Blinders) in order to create a caricature of the character Tommy down to his struggle to escape the prisons of class and war, linking him to the mad and desperate “Johnny” of the song, the vid uses Tommy’s bokmaking business and preoccupation with horses and horseracing as a metaphor for his attmpt to become more than a “horse” (a broken, ridden animal) himself. In “Horse”, horses become a symbol of an entire class of citizens framed as secondary to the point of nonhumanity, as are the Shelbys, and Tommy’s bookmakking business and engagement with horseracing is conflated with his own slim chance at a non-servile life. Horseracing is the vehicle in Peaky Blinders for Tommy’s rise to wealth and climb up the social ladder, but the vid shows us that Tommy himself is the horse who is racing. The vid selects, edits, and exaggerates Tommy’s life in racing and creates through careful editing a narrative connecting the show’s themes of horseracing and numbers running through the rise of an entire community framed as nearly another species. The alteration of narrative television into music video is a significant alteration of purpose; the idea that Tommy is himself a horse who is representing a working class community of work horses is a significant commentary not only on the television show itself but of larger political import. It is citing Peaky Blinders but it is saying something new; it is a political statement as well as a work of media criticism that is doing an elaborate and sophisticated reading of the original text. The vid in no way affects the market for the original work; in fact, it may serve to attract new viewers to the show. The likely audience for the vid has already watched Peaky Blinders and will be interested in the commentary and analysis about class and status that the vid provides. The ten minute video does not substitute for the multi-hour elaborate televisual narrative in any way. Lim’s other vids have been shown in various museums and art galleries including the California Museum of Photography, the Museum of the Moving Image, and the Cleveland Gallery; her vid “Flow” is currently part of the MashUp exhibition at the Vancouver Art Gallery (opens Feb 20, 2016). Articles about her vids have been published in Cinema Journal, Camera Obscura, and other publications; a still from her vid “Us” was acknowledged to be Cinema Journal’s most popular cover.

(God, excruciating!) Anyway we sent it off and I waited.

And waited. I am actually cutting OUT some parts of this process - this is the short version. o.O

But see where it says “Policy Inactive, Appeal is in Progress”? Eventually I realised I could publish during the dispute period! You never used to be able to do that. Top tip - you totally can do that now. So I published that fucker hahaha

And also at this point I made my peace with the death of my Youtube account and indeed my Google accounts in toto, which I have had basically my whole adult life, over the posting of a fan video. I took a hour and archived some shit:

And then at the end of the dispute period…

Yeah, they “reviewed” my appeal and Unnamed Show is definitely theirs. Unnamed Show. SRSLY. Talk about bad faith. Fuck that. I let the strike come down:

I did everything they advise you to do. (I’d already gone to copyright school, just out of interest really.) I sent this email to the listed copyright owner. You can repurpose a lot of this email for your own disputes, so it’s worth pasting in.

Director of Digital Content, Endemol Beyond UK

Dear Mr. __,

I am writing as directed by YouTube’s counter-notification procedure to ask you to retract your takedown of my video, “Horse,” which constitutes a fair dealing under UK law and a fair use under US law. I make remix video art under the name lim; my work has been internationally exhibited, including, amongst others, shows at: the California Museum of Photography “Mediated” and the Library of Congress “Digital Natives”. Articles about my work have been published in Cinema Journal, Camera Obscura, and other academic publications; my vids are discussed in numerous books. There is a selected listing here: http://limvids.net/cv.html

Vids are a form of remix and Vidding, the artistic practise of which this vid is an example, has a forty year history. My vid, “Flow” is currently part of the “MashUp: the Birth of Modern Culture” exhibition at the Vancouver Art Gallery, in the Vidding section of “Cut Copy and Quotation in the Age of Mass Media”: https://www.vanartgallery.bc.ca/the_exhibitions/exhibit_mashup3.html

“Horse” is a noncommercial art work that uses a very small portion of its original source material (ten minutes of footage carefully selected from the twelve hours of the television show Peaky Blinders) in order to create a caricature of the character Tommy Shelby for entertainment and political purposes. The resulting vid provides a politically and artistically charged interpretation of your show, of which I am a fan. “Horse” uses Tommy’s bookmaking business and pre-occupation with horses and horseracing as a metaphor for his attempt to become more than a “horse” (a broken, ridden animal) himself. In “Horse,” horses become a symbol of an entire class of citizens framed by those in power as secondary to the point of nonhumanity, as are the Shelbys, and Tommy’s bookmaking business and engagement with horseracing is re-interpreted as his own narrow odds of winning the (metaphorical) race.

Fair dealing gives me the right to quote from your show for the purposes of criticism, review, caricature or pastiche. The alteration of narrative television into music video is a significant alteration of purpose; the idea that Tommy is himself a horse who representing a working class community of domesticated work horses is a significant commentary not only on the television show itself but on larger political considerations of economic and social class. It is a political statement as well as a work of media criticism.

The vid in no way affects the market for the original work; in fact, it may serve to attract new viewers to your show. The likely audience for the vid has already watched Peaky Blinders, or is willing to be convinced to watch it, and will be interested in the commentary and analysis about class that the vid provides. My ten-minute video does not substitute for the twelve hour programme in any way.

I am also perfectly happy for you to monetise the footage on YouTube; I am not interested in commercialising this work. However, I do want the vid to reach my artistic community, so again, I ask you to please withdraw your takedown and any blocks.

If you have any questions, you can contact me via email at …@…; you can also contact intellectual property lawyer and Georgetown professor Rebecca Tushnet (..@…. or …@…), one of the legal advisors of the Organization For Transformative Works, or Professor Francesca Coppa, who wrote the catalogue copy for the Vancouver exhibition and is a recognised expert on vidding and music video (…@…).

If I do not hear from you within two weeks I will formally counternotify via the Youtube process.

Sincerely yours,

(Me)

He never replied, big shocker, so at the end of the two weeks, I counter notified.

(scared.gif. I totally didn’t have time to make a real scared.gif to put here but I WAS scared.gif )

And then what? Yeah, more waiting. Nothing happens for ages. And then?

You don’t win, is the thing to understand. You just don’t lose. To go any further they have to sue you. It’s a game of chicken. Until one day it isn’t, I guess. But, you know, I have no assets, so I’ll take that bet.

2. Understanding Fair Dealing

There are defences in UK law but they are a bit different, and they’ve been clarified quite recently specifically in response to stuff like remix, mashup, and vidding.

The gov website is actually pretty good. It seems like if you are making multifandom vids you are straight up protected on the visuals? It’s actually in the example given by the government explaining the October 2014 Amendment 30A:

For example a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork. Exceptions to Copyright

The IPO have produced a free booklet for creators (that’s us) Exceptions to copyright: Guidance for creators and copyright owners (pdf)and they explain this a bit more on Pages 5 and 6:

What’s changing?

Many works of caricature, parody or pastiche – songs, films, artworks and so on - especially in this age of digital creation and re-mixing, involve some level of copying from another work. […]

Q. What is meant by “for the purpose of caricature, parody or pastiche”?

The words “caricature, parody or pastiche” have their usual meaning in everyday language, but also take account of the context and purpose of the copyright exceptions. In broad terms: parody imitates a work for humorous or satirical effect. It evokes an existing work while being noticeably different from it. Pastiche is musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.

Q: Does the parody have to be making fun of the original work or its author?

A: Whilst parody does involve an expression of humour or mockery, it does not have to comment on the original work or its author. It can be used to comment on any theme or target.

So anyway, my vid was all from one show, so I went with the caricature defence. It pleased me to do this as 1. to caricature really means to charge, to overload? To exaggerate. And that is pretty close to something I’m doing in vidding - really pack in and intensify an emotion/reading/feeling. and 2, this:

When Men’s faces are drawn with resemblance to some other Animals, the Italians call it, to be drawn in Caricatura

~1716

Cause he saw horses, horses, horses, horses, horses, horses, horses, horses

So that seemed right to me. :P

The booklet also clarifies what fair dealing actually is on P8:

What is fair dealing?

‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair- minded and honest person have dealt with the work?

Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair, include:

• Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.
• Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used.

So for a vid you are putting up for free on Youtube you are pretty much good to go, I think? It’s the nature of a vid to only use parts of the work, you are always making a new work that references and never substitutes the old. (IANAL & TINLA)

The only possible issue is the song, because: For example, it would not be considered “fair” to use an entire musical track on a spoof video. (p8) But if you’re using a ContentIdentified song that the copyright holder has monetised directly on your vid post, that’s just an automated system for the rights holder to give you permission so none of this applies anyway. (TINLA!) Obviously a lot of vidders make their own tracks (soundwork) anyway, and those vids seem to fall totally under the remix exemptions.

3. What can I do?

So look, if (and it’s not required at all!) you want to do this yourself, here’s my advice:

1. MAKE YOURSELF LOOK BIG

Make a portfolio/ vidding cv. These people don’t necessarily know what vidding is. We can only feel pity for them and be kind about it. Link to articles about vidding, meta, exhibitions, vid shows. Write an artist’s statement if you can - check out these sample statements. Don’t go on about vidding being illegal because that’s bollocks. But you can link to this cv every time you get dinged, so it’ll save you time in the end.

It is obviously embarassing and bizarre to have a vidding cv but we just have to cope with it. Just cope! It’s not for in fandom, it’s for defence.

Here is mine. I made it by googling myself of an evening and also by posting on my tumblr and getting everyone to send me cites. Thank you to everyone who helped me. (Let us never speak of it again.)

2. TAKE YOUR VID SERIOUSLY AS FUCK

Write a screed about how deep your vid is. I personally do not do vidder's notes so I was a bit stumped by this at first. But then I thought, self, you're in fandom; you have fic-writing mates! Put them to work.

2a. Do not arm your enemy

The thing is, guys, you can do this thing of saying your vid doesn’t matter and who cares. I get that. I’ve DONE that, a lot. That’s fine. I’m not a… I’m not one of those completist, archivist kind of fans. (I know I ran all those newsletters and built an archive but…shut up a minute :P) I don’t really do owning of things, myself, IRL. I don’t keep mementoes or take photographs or anything.

I’ve talked a lot about liking the ephemeral, conversational nature of online art, and I do! Ephemerality can be freeing. I actually think there’s a pretty good argument for the power of getting lost. How to say this… What I mean is… you’re more likely to try out ideas in long, open conversations that are not being recorded and allow a lot of failure. In art, in fandom, stuff getting buried and lost can be generative. It lowers the stakes; you don’t have to lug around your Body of Work like a fucking cross. You can throw shapes (or pots). The fact that tumblr is an unarchivable, unsearchable hellhole of a site is precisely why so much happens there, IMO.

But this takedown stuff is not that. We already have plenty of ways to dip into and out of that kind of useful, generative ephemerality. There’s no reason to arm your enemy by telling them your vid is worthless. Cause here’s the rub: they will believe you. I know how appalling you find this whole proposition, but I have to break it to you, as my relentlessly bouncy Americans have finally broken me. Self deprecation just arms your opponent.

So if you can’t or won’t do it yourself, get a fic writing mate and turn em upside down and shake out a few hundred words. You can do this shit. Pontificate!

3. HOLD YOUR NERVE

Every single stage of the dispute process is purposefully scary as fuck. You have to put in your real name and your address. NOTHING is explained– there’s no sample process to look at so you can’t know what might happen next. They constantly tell you you could go to hell prison. They put dates in red! Hold. Your. Nerve.

4. NEVER SAY DIE

They won’t stop doing this - why should they? There’s no downside for them at all (though the upside is a mystery tbh). And they won’t accept it. You won’t win. But they (probably) will just run out the clock. Don’t take your vid down. Don’t accept the strike. Submit your dispute. Pursue the claim. When they reject everything you say, then COUNTER NOTIFY.