Film Your Kid Dancing To A McDonald's Happy Meal CD... Get A Takedown Notice From Google

from the prince-redux dept

Wed, Dec 30th 2009 12:19pm — Mike Masnick

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 notice claims that the video contains content for which the copyright is held by record label Razor & Tie. The guy who got the takedown seems a bit confused, in that he appears to be blaming McDonald's for the mess, when it appears McDonald's had nothing at all to do with the takedown. In fact, the record label Razor & Tie may not have anything to do with it either... as I'll explain below. The song used in the video was from a CD that came with a McDonald's Happy Meal. Looking around, it appears that in April, McDonald's announced a promotion with record label Kidz Bop to issue music CDs. Razor & Tie is the parent company of Kidz Bop. The problem here is clearly not McDonald's. All it did was include the CD in Happy Meals. It's got nothing to do with the takedown, and the guy's anger at McDonald's is misplaced (though, you could make the argument -- and it's a stretch -- that McDonald's should tell its partners to avoid these sorts of ridiculous copyright claims that scare people away from buying Happy Meals).

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

44 Comments

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johnjac (profile), 30 Dec 2009 @ 11:41am

Fuzzy lines
Copyright in general in fair use in particular are too hard to define any more.

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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yep, 30 Dec 2009 @ 12:31pm

Sounds like a
Chilling Effect
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stupid human hollywood tricks, 30 Dec 2009 @ 12:39pm

this is RETARDEDLY EASY
DID the video make the user money
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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Anonymous Poster, 30 Dec 2009 @ 12:48pm

Re: Fuzzy lines
And that's the point of Fair Use: like many laws, Fair Use is constantly in flux and is refined across many different cases. If you had to draw lines in the sand for Fair Use statutes, then you would have to set down concrete limits, and those limits would either be too restrictive for end users or too loose for the copyright holders' comfort.

Fair Use being in the state it's in is a good thing.
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Eric Goldman (profile), 30 Dec 2009 @ 12:52pm

An added bonus
Free with every McDonald's Happy Meal...one free CD and one free 512(c)(3) takednow notice!
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Nerdthulhu, 30 Dec 2009 @ 12:53pm

Nerdthulhu thinks...
Nerdthulhu thinks that this shall soon become a meme...

your ing to , get a from .
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Anonymous Poster, 30 Dec 2009 @ 12:54pm

Re: this is RETARDEDLY EASY
The problem here is that Google's content filters can't tell if the usage of the content falls under fair use; it can only say if the content is copyrighted and needs to be pulled down or not. The software doesn't know the difference between a thirty-second clip of a child dancing to a song playing in the background and a full video of the song, except for the amount of time the content is played.

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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Mike Nealey (profile), 30 Dec 2009 @ 1:00pm

Hope they don't see my video
I hope nobody views my video that shows my daughter singing a song my Pink: http://www.youtube.com/watch?v=1E8Q7n6_Wog
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Anonymous Coward, 30 Dec 2009 @ 1:07pm

Re: Hope they don't see my video
I, for one, don't want to see your daughter and most certainly don't want to see your pink!
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wvhillbilly (profile), 30 Dec 2009 @ 1:08pm

Fair use & Takedown notices
another techdirt article speaks of Viacom sending out some 63,000 takedown notices all at one time. Now how long would it take Viacom or anyone else to make a fair evaluation including fair use for all 63,000 files in that batch? I doubt Viacom's entire staff doing nothing but evaluations full time would be able to keep up with that kind of load. My suspicion is these outfits (as another reader suggested) simply search keywords with mildless bots that automatically send out a takedown notice every time one gets a hit.
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Hephaestus (profile), 30 Dec 2009 @ 1:10pm

Re: Fuzzy lines
Not really all that fuzzy just one question ....

Is The Person Profiting From This Video?

Thats the only thing in this case that matters.
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count dracuka, 30 Dec 2009 @ 1:14pm

stupid
DMCA = Dumb Massive Corporate A = Donkeys!
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jmproffitt (profile), 30 Dec 2009 @ 1:17pm

What about those dance moves?
I believe that kid's choreography was copyrighted by Disney a few years ago... CALL THE LAWYERS!
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johnjac (profile), 30 Dec 2009 @ 1:30pm

Re: Re: Fuzzy lines
What is 'profiting'?
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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johnjac (profile), 30 Dec 2009 @ 1:33pm

Re: Re: Fuzzy lines
Were a nation of laws. I as a citizen should be able to reasonably predict if my actions are in violation of those laws. To suggest otherwise is ridiculous.
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Richard (profile), 30 Dec 2009 @ 1:37pm

Re: Fuzzy lines (wrong ones actually)
Fair use has nothing to do with professionalism or quality.

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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Anonymous Coward, 30 Dec 2009 @ 1:40pm

Wait, let me feign disgust that Google would dare preemptively warn a user that their material may be infringing, with no other recourse.

Who cares what the title of the document is if the language is that of concern not reprimand.
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Marcus Carab (profile), 30 Dec 2009 @ 1:44pm

I love the occasional spasms of comedy
(well, it did decide to put out these silly music CDs, but that's a separate issue)

http://instantrimshot.com/
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Anonymous Coward, 30 Dec 2009 @ 1:47pm

Re:
Receiving a warning means that the punishment can and will be enforced.

If that is false, then a warning should not be sent.
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Anonymous Coward, 30 Dec 2009 @ 1:48pm

Re:
Yes, how dare Mike preemptively warn Google that they're about to be douchebags.
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Anonymous Coward, 30 Dec 2009 @ 1:54pm

receiving a warning means punishment may and might be enforced
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johnjac (profile), 30 Dec 2009 @ 2:06pm

Re: Re: Fuzzy lines (wrong ones actually)
I totally agree, once (if) a case like this ever goes to court, none of these questions should matter.

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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Anonymous Coward, 30 Dec 2009 @ 2:14pm

Not that many years ago I used to groan when people would pull out slides from their vacation, movies of their kids, tapes of a trip to Sea World, etc.

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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JoeRider (profile), 30 Dec 2009 @ 2:14pm

I've got the same warning!!!!
I've got a video I uploaded on YouTube right now with that same warning. The video still plays fine -- the very next heading under the screen-shot part he shows says "What should I do?" in bold, and beneath that "No action is required on your part. Your video is still available worldwide. In some cases ads may appear next to your video."

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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Anonymous Coward, 30 Dec 2009 @ 2:34pm

it seems that the automated email from google should go to the party that uploaded content for the filter, rather than whoever uploaded the content. Let the copyright owner decide what to do.
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Mike Masnick (profile), 30 Dec 2009 @ 2:50pm

Re:
Now I groan when I see that people subject the whole world to stuff like this. Geez...

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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Marcus Carab (profile), 30 Dec 2009 @ 3:17pm

Re:
Not to mention that the world has shown time and time again that it does occasionally enjoy a cute but pointless video.
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ChurchHatesTucker (profile), 30 Dec 2009 @ 4:43pm

You keep using that word
"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."

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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DanC (profile), 30 Dec 2009 @ 4:43pm

Re: Re: Fuzzy lines
Whether the person is profiting is only one of the factors a court uses to determine fair use, and hardly the only thing that matters.

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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Vincent Clement, 30 Dec 2009 @ 4:43pm

Re: Re: Fuzzy lines
Contrary to popular belief, fair use and "profiting" are not mutually exclusive.
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roxanneadams (profile), 30 Dec 2009 @ 5:00pm

I understand why the father would opt to take down the video without a legal fight. Let's just say he owns a gas station or he work(ed) the assembly line at Ford. How many hours in a day does a working man have to devote to a cause like this? If I owned anything, like a house, or a bank account with more than fifty dollars in it, I'd legitimately be concerned about what happens to nice people who get screwed in civil lawsuits. Even though this isn't likely to end up in the courts, I'd be thinking about my house, my kids and the legal fees I might be stuck with, and I'd take down the video.
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Fred von Lohmann (profile), 30 Dec 2009 @ 6:27pm

resource for confused YouTubers
A big part of the problem here is the confusing number of ways your YouTube video can be taken down: could be a terms of use violation, could be a Content ID match, could be a DMCA takedown. It's a maze for most users to figure out. That's why EFF wrote and posted the Guide to YouTube Removals. Spread that link around!
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Anonymous Coward, 30 Dec 2009 @ 9:12pm

Re: I've got the same warning!!!!
So google attaches an add for a song in the background of a video. Does this mean google/youtube gets a cut?

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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John Fenderson (profile), 30 Dec 2009 @ 10:20pm

Re: Re: Re: Fuzzy lines
"I as a citizen should be able to reasonably predict if my actions are in violation of those laws."

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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John Fenderson (profile), 30 Dec 2009 @ 10:21pm

Re: Re: Re: Re: Fuzzy lines
Oops, bad edit. "if the road conditions require it" means "if the road conditions require a slower speed in order to remain safe"
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johnjac (profile), 31 Dec 2009 @ 5:29am

Re: Re: Re: Fuzzy lines
Agreed.
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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johnjac (profile), 31 Dec 2009 @ 5:35am

Re: Re: Re: Re: Fuzzy lines
At least the speed limit is a target to shoot for on most days. And it is generally understood when the speed limit will be lower (albeit by how much would still be up for debate).

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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johnjac (profile), 31 Dec 2009 @ 5:36am

Re: Re: Re: Fuzzy lines
agreed.
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transmaster (profile), 31 Dec 2009 @ 2:19pm

Re: Re: Fuzzy lines
The definition of far use is much like how sexual harrasment is defined, every 30 seconds by the bitchiest person in the room.
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Pat Aufderheide (profile), 1 Jan 2010 @ 9:51am

The Code of Best Practices in Fair Use for Online Video
Several people have asked for greater clarity in understanding where the limits and opportunities are with fair use for online video. This Code of Best Practices should be very helpful:
http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/
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Clyde Smith, 2 Jan 2010 @ 4:22am

Who's to Blame & Branding
"though, you could make the argument -- and it's a stretch -- that McDonald's should tell its partners to avoid these sorts of ridiculous copyright claims that scare people away from buying Happy Meals"

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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johnjac (profile), 2 Jan 2010 @ 8:09am

Re: Re: Re: Fuzzy lines
nice.
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Anonymous Coward, 10 Jun 2010 @ 9:34am

youtube
youtube does this too--in fact, they just took my video down themselves. It had my 2-year-old dancing to House of Pain's "Jump Around" for about 15 seconds.
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Bruce, 13 Oct 2010 @ 2:04pm

clever
governor Arnold Schwarzenegger or Arnold Swarchenegger should ban this garbage from CA!
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