Film Your Kid Dancing To A McDonald's Happy Meal CD... Get A Takedown Notice From Google
from the prince-redux dept
One of the more famous examples of abuses of the YouTube video takedown process was the case of Lenz vs. Universal Music, which involved Universal Music issuing a YouTube DMCA takedown to a woman who posted a very short clip of her baby dancing to a Prince song that was playing in the background. It was a clear case of fair use, and while after the woman filed a counternotice Universal chose not to sue, the EFF filed a lawsuit against Universal Music, saying that the DMCA notice was fraudulent, since it was such an obvious case of fair use. While Universal Music argued that since fair use is just a "defense" and not a "right" it need not consider fair use in sending a takedown, the court disagreed.You would think, then, that any takedown notices on similar short videos of kids dancing to music would avoid a similar scenario. Copycense points us to the news that a guy has received a notice from Google of potential infringement for his short clip of his kid dancing along to what appears to be a version (not the original) of the Kool & The Gang song "Celebration." As in the Lenz case, this video is a kid dancing to somewhere around 30 seconds of a song:
The next assumption, then, would be that Razor & Tie is guilty of sending the takedown, but I don't think that's true. If Razor & Tie had sent a DMCA takedown, the video would be down. When Google receives a DMCA takedown, it almost always (or perhaps always) pulls down the content immediately in order to retain its DMCA safe harbors. The user would then need to file a counternotice to start the process of potentially getting the video back up. The fact that the video is up and the notice the guy received simply tells him to review the videos suggests that no DMCA takedown was sent.
Instead, the blame almost certainly lies with Google's content recognition engine/filters that the record labels pushed them to use to try to catch copyright infringement ahead of time. Now, Razor & Tie is somewhat complicit here, in that it appears to have uploaded its catalog to train Google's filters (if I remember correctly -- and correct me if I'm wrong -- Google needs the copyright holder to submit copies for its filter to work). So, Google had this particular song on file, and noticed the similarity. Google's filter algorithms don't appear to consider fair use (or, perhaps more likely, they do a bad job of it in many cases) and the guy then is sent the automated notification, even though it makes everyone -- McDonald's, Razor & Tie and Google -- look bad, though the blame from the recipient appears to be in almost reverse order of culpability.
Unfortunately, the guy who received the notice also appears to be confused concerning his own rights. He says he is going to take down the video, though he clearly has a strong fair use case in asking for the video to be left alone. It seems likely that Google would allow the video to stay up, and I highly doubt that Razor & Tie would do anything else (it would be ridiculous to try to claim that this was not fair use).
Either way, this highlights a variety of interesting things. First, despite all the publicity of the Lenz case, these types of "takedowns" (even if it's not a DMCA takedown) still happen. Second, people on the receiving end of these notices assume that there is no recourse that would allow the video to stay up. People get official sounding notices and they assume they need to jump. Third, Google's content match filter isn't particularly good on fair use issues. Fourth, when these sorts of bogus notices are sent, it reflects very poorly on a variety of companies. In this case, McDonald's is getting most of the blame, despite being almost entirely blameless (well, it did decide to put out these silly music CDs, but that's a separate issue). Even Razor & Tie may be getting misplaced blame (though it may depend on the "rules" it set for Google's filter). Amusingly, it may be Google that deserves the most blame, and it appears to be getting the least.
Still, no matter what the situation, it's simply ridiculous that a guy filming 30 seconds of his kid dancing should have to worry about any of this.
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Filed Under: copyright, dancing, filters, kids, music, takedowns, videos, youtube
Companies: google, kidz bop, mcdonald's, razor & tie, youtube
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Fuzzy lines
Video clips of kids dancing around the house are clear fair use, but where is the line?
What if:
The dancer was an adult?
The dancer was a professional dancer?
The clip was 2 minutes instead of 40 secs?
The music wasn't ambient, but edited in afterwards?
The the clip was professionally edited?
What if the clip as put up by an employee of the camera company so it could be consider an ad for the camera?
When is the clip no longer fair use:
The the dancer is to old or professional?
The clip is 60 seconds long?
The audio quality is too good?
The person behind the camera or uploading it may gain financially or other wise?
Too many fuzzy lines, I'm not sure they'll ever be clear.
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Re: Fuzzy lines
Fair Use being in the state it's in is a good thing.
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Re: Re: Fuzzy lines
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Re: Re: Re: Fuzzy lines
You want fuzzy? In my state, we follow the "basic rule" for speed limits. THe posted limit is a (very) strong suggestion, however if the road conditions require it, you can be ticketed even when driving at or below the limit. Likewise, if the road conditions allow you to do so safely, you can legally drive above the posted limit (although proving that it was safe in court might be tough.)
My point is that we are a nation of laws, but surprisingly few of those laws are actually as black and white as people think they are. We live in a world of grays, and the laws tend to reflect that.
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Re: Re: Re: Re: Fuzzy lines
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Re: Re: Re: Re: Fuzzy lines
Most days if you are driving at or under the speed limit you know you are fine.
What is the target for fair use? When do I know that I'm under the 'fair use' limit?
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Re: Re: Fuzzy lines
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Re: Fuzzy lines
Is The Person Profiting From This Video?
Thats the only thing in this case that matters.
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Re: Re: Fuzzy lines
Would Ad words on the posters blog be profiting?
What if this was a submission to "So You Think you Kid Can Dance $1 Million contest?"
What if the original intent wasn't profiting, but later the kid got a contract to dance for a McDonald's ad?
The lines are fuzzy?
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Re: Re: Fuzzy lines
There is no hard line that determines what is and what is not fair use. There are generalities that can be used to determine if something would most likely be considered fair use based on common sense and court rulings.
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Re: Re: Re: Fuzzy lines
My point being this is a crazy amount of thought to determine if one should post a video so someone dancing.
It shouldn't be the complicated
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Re: Fuzzy lines (wrong ones actually)
The relationship with commercial gain relates to a different kind of use (research, educational etc) from that under consideration here.
The key factor in this type of case is whether the use forms a substitute for the original and thus decreases the market for same.
The fact that the dancer was adult or professional would certainly be a total non-issue.
It's fine to make money too - provided that this does not in any way cause a loss to the original copyright holder.
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Re: Re: Fuzzy lines (wrong ones actually)
But I feel the questions I raised about the clarity of fair use seem to play in whether takedown notices are sent or not, and whether the takedown notices are acted upon by the service provider or poster.
This happens way before a judge sees the case.
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Sounds like a
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this is RETARDEDLY EASY
NO- check
DID the people in the video get paid to do it
NO - CHECK
ya see the need to have non commercial fair use
should and needs to preclude this insanity OR
we need to massively reduce the scope and terms of copyright
ITS YOUR CHOICE cause sooner or later the levy as they say will break and osmeone will start getting physically hurt over this, and i dont mean pirates
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Re: this is RETARDEDLY EASY
Google's content filters have to take some of the blame (which means that the record labels have to eat a little blame too - for forcing Google to put the filters in place).
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An added bonus
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Nerdthulhu thinks...
your ing to , get a from .
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Hope they don't see my video
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Re: Hope they don't see my video
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Fair use & Takedown notices
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stupid
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What about those dance moves?
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Who cares what the title of the document is if the language is that of concern not reprimand.
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Re:
If that is false, then a warning should not be sent.
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Re:
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I love the occasional spasms of comedy
http://instantrimshot.com/
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Now I groan when I see that people subject the whole world to stuff like this. Geez...
As for the clip itself and how it relates to fair use, it is likely a fair use and any attempt at enforcement of copyright would likely fail. Of course, I can well understand how a filter might flag this given the amount of time that the song played in the background. I rather doubt that a filter could figure out a kid was dancing while his parents made yet another "Isn't he cute?" video.
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Re:
How very scrooge-like of you.
It is not "the world" be subjected to this. You don't have to see these videos and no one expects you to. Videos like this are put up so that someone can share it easily with their friends and family.
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I've got the same warning!!!!
The only difference I notice in the video is that an ad comes up showing people where they can purchase the song I used from Amazon.
I think the guy just wants some views.
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Re: I've got the same warning!!!!
I would like to assume that the label is happy to sell something but those folks are such idiots one can never be sure.
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You keep using that word
He has to be prepared to defend his 'rights' in court. I don't think he's confused. I think he's done a cost/benefit analysis.
OTOH, you're right in that the video is still up raises questions. Google will send you a notice if it thinks there's a copyright claim from someone who is content to place ads on the page, and that may be what happened here. OTOOH, I don't see a related ad on that page, aside from the in-video annoyance.)
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resource for confused YouTubers
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The Code of Best Practices in Fair Use for Online Video
http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/
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Who's to Blame & Branding
That's not a stretch. They're a major corporation with a major brand and entering into a relationship that can harm that brand is a major mistake and one for which shareholders should hold them accountable.
So the direct blame may not be on McDonald's but that's no reason it can't or shouldn't harm their brand.
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youtube
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clever
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