Hours after uploading my new mashup video, which remixes Miley Cyrus’ ‘Wrecking Ball’ with Sinead O’Connor’s ‘Nothing Compares 2 U’, I discovered that it had been blocked globally on YouTube, as a result of a match thrown up by Google’s automatic third party copyrighted content-matching software. Both the music samples and video samples from Miley Cyrus’ ‘Wrecking Ball’ were flagged as being copyrighted by Sony Music Entertainment and so the video was blocked in every country in the world. I filed a dispute, citing reasons why the video falls under fair use, as below. Hopefully the block will be lifted so that people will be able to watch the video soon.
Explanation: My video, ‘Miley / O’Connor Mashup – Nothing Compares to a Wrecking Ball’, is a highly transformative remix video that offers a critical comment on a topical issue (i.e. Miley Cyrus’ negative publicity and Sinead O’Connor’s public condemnation of her behaviour). The remix video is intended to be educational and non-commercial, as it was produced as part of a PhD research project and offers a corrective feminist perspective to the misogynistic imagery found in many music videos today. In addition, the footage used (Sinead O’Connor’s ‘Nothing Compares to You’ and Miley Cyrus’ ‘Wrecking Ball’) and the copyright holders of this content are acknowledged in the description text. Furthermore, both the audio and the video tracks consist of samples, which have been significantly altered and transformed to produce a new mashup song and video, which is very different when compared with any of the original material in isolation. Please release the block on my video, as I feel very strongly that its important, positive message for young women needs to be heard and seen. Thank you. Under Section 107 of the US Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use. This remix video is a critical and transformative work that constitutes a Fair Use in accordance with Title 17 U.S.C. Section 107.
*** UPDATE: The remix was reinstated on January 10th, following significant negative media attention directed towards Lionsgate as a result of the spread of Jonathan’s story (posted 48 hours before).***
More than three years ago, American remixer extaordinaire, Jonathan McIntosh uploaded ‘Buffy vs Edward: Twilight Remixed’ to his YouTube channel. The remix went on to be hugely successful, spreading virally to over 3 million views, featuring widely in online media and even winding up as part of academic curricula around the world. But perhaps its crowning achievement was being screened at the official DMCA exemptions hearings held by the US Copyright Office in summer 2012 and being noted as a clear-cut example of fair use (specifically, an example of ‘transformative non-commercial video work’) by experts in the field.
However, the legal eagles at Lionsgate have recently had the video removed from YouTube, because, they claim, it infringes on the copyrights Lionsgate holds that protect the Twilight movies (from which McIntosh sampled 1 minute and 48 seconds of footage). Having personally been through the YouTube counter-notice appeals process myself (dealing with copyright infringement notices from the BBC, Paramount Pictures and 20th Century Fox for video remixes I made, albeit prior to the introduction of YouTube’s monetisation strategy), I was relatively familiar with the process, but was fascinated to read Jonathan’s in-depth blow-by-blow account of Lionsgate’s absolute abuse of copyright law in relation to uploaded videos on YouTube.
In summary, McIntosh first received a notice in October on his YouTube channel claiming that some or all of his video “matched third party content”. I teach web media and most of my students upload their work to YouTube channels – in recent months, I’ve noticed a worrying increase in the number of ‘matched third party content’ notices that have been applied to my students’ channels. In most cases, it’s because they have included a small sample of a song to enhance an animation or video they’ve been working on and for this they do not get penalised, but rather, like in Jonathan’s case, YouTube places ads beside or overlaid on top of the videos and the revenues go to the copyright holders when people click them (presumably).
Naturally enough, Jonathan didn’t want ads for ‘Nordstrom’s fall fashion’ line appearing over his video (which critiques gender stereotypes in popular culture) and in addition, such a third party content match stops the video from playing on mobile devices, a huge loss of potential viewers (20% of YouTube views come from mobile devices). Jonathan filed a dispute claim on grounds that the remix video was an example of fair use (using YouTube’s automatic counter-claim facility) but received a rejection of the dispute from Lionsgate within 24 hours. At this point, Jonathan sought legal advice and then submitted an appeal to the reinstatement of Lionsgate’s claim of copyright infringement, again using YouTube’s automated process (this second round of appeals did not exist when I went through the process in 2008), accompanied by a 1,000 word detailed legal argument outlining how and why Buffy vs Edward is an example of Fair Use.
A month later, YouTube sent a message on behalf of Lionsgate stating that they had withdrawn their copyright infringement claim. But later that day, they launched a fresh copyright claim on the video. According to YouTube, Lionsgate’s first claim was for infringement of ‘audiovisual content administered by Lionsgate’ (the claim that was released), however the second claim was (confusingly) for infringement of ‘visual content administered by Lionsgate’. Patiently, Jonathan went through the process again. He filed a fair use dispute counter-claim (which was again rejected by Lionsgate within 24 hours) and then filed an appeal against the reinstated claim using the same 1,000 word legal argument and waited for a response. Lionsgate obliged with an early Christmas present for McIntosh on 18th December, this time rejecting the appeal and having the video permanently deleted from YouTube. Well played Lionsgate! If at first, you don’t succeed…
To make things worse, Jonathan was now locked out of his YouTube account, had a copyright infringement strike placed on his channel and was (rather hilariously) forced to attend YouTube’s copyright school and take a pop-quiz on fair use before he could access his account again. You couldn’t make it up. If there’s anyone who knows more about fair use than Jonathan McIntosh, I haven’t met him. Rightly worried and concerned, Jonathan had his lawyers contact the relevant people at Lionsgate who filed the copyright claims and discovered something deeply disturbing (which is why I felt compelled to write and share this as widely as possible). Lionsgate’s representative on this, Matty Van Schoor from a company called ‘MovieClips’ (that manages Lionsgate’s clips on YouTube), stated that if Jonathan had agreed to allow ads to appear with the video, they would have left it online, but because he disputed and appealed this, they were “left with no other option than to remove the content”.
This is a very worrying development for anyone who makes use of the Fair Use provision in U.S. copyright law, especially remixers like Jonathan and others like him. In this case, instead of respecting a clear-cut example of Fair Use, Lionsgate and YouTube have effectively ignored the Fair Use provision, instead suggesting that copyright holders should have total control to ‘allow’ people to remix their content, as long as they can profit from it (and remove videos if they choose). The problem here is that in cases of fair use, permission does not have to be sought from copyright holders. Of course, fair use is not a right, it is merely a legally defensible position, and it is a difficult task to determine whether a specific example is fair use or not. However, in this case, this argument does not apply, as this particular video was quite clearly cited as an example of fair use by the U.S. Copyright office, no less!
Following further advice from his lawyers, Jonathan filed an official DMCA Counter-Notification against Lionsgate, which gives them 14 days to reinstate the video, or else sue Jonathan for copyright infringement. Let’s hope they choose to reinstate it, but from what we have seen and heard so far, I’m not so sure they will. Thanks to Jonathan for sharing his story and now, for your viewing pleasure, may I present ‘Buffy vs Edward: Twilight Remixed’…(reuploaded elsewhere on YouTube by a fan!)
