The Ellen Show Issues Copyright Takedown On Transformative Video Commenting On Her Friendship With President Bush

from the copyright-as-censorship dept

Another day, another example of copyright being used as censorship. As you may have heard, there was a bit of controversy this weekend when talk show host Ellen DeGeneres attended the Dallas Cowboys game with former President George W. Bush. This made lots of people quite upset as they argued that being friends with Bush was either support for "tolerance of hate and discrimination" or an effort at "whitewashing... his manifest crimes." Others argued, as Ellen did, that there are good reasons to be kind to people you fundamentally disagree with.

Wherever you come down on that debate, hopefully you can agree that, no matter what, the Ellen Show was wrong to use a copyright claim to take down a transformative video, created by Rafael Shimunov, that took Ellen's "be nice to each other" monologue about the situation and superimposed images on the back screen of what appears to be scenes of devastation in the Middle East that came about from President Bush's policies. This is, of course, classic fair use. Taking a bit of video (1 minute and 46 seconds) from Ellen's show, and using it in a transformative way to provide commentary and criticism of Ellen's speech. Even if you think it's unfair or heavy handed, it still should quite clearly be protected by fair use. But, instead:

That's the original tweet posting the video, showing that it has been "disabled in response to a report by the copyright owner."

Of course, in response to this, a whole bunch of folks are now reposting the video on Twitter. So far, (as I type this), they've mostly remained online -- which at least suggests that the original takedown was not an automated takedown notice or machine recognition situation, but a deliberate report. Indeed, other tweets suggest that the "social media manager" of The Ellen Show sent a DMCA takedown over the video.

It's possible (likely?) that this lower level staffer just thought she was stopping "copyright infringement" (and maybe didn't even realize the transformative nature of the video), but it still highlights the incredible censorial powers of copyright law and the DMCA, in which, by mere accusation, the content may get deleted -- especially regarding a time-sensitive and politically relevant discussion.

Still, as happens when these situations come about, tons of people are now reposting the video:

Perhaps this is something that Ellen might want to discuss with Barbra Streisand the next time she has Streisand on her show...

Filed Under: censorship, commentary, dmca, ellen degeneres, fair use, george w. bush, political speech, transformative
Companies: the ellen show, twitter

Twitter Removes Nickelback Meme Trump Tweets, But Leaves All The Others Up

from the what-do-you-meme? dept

By now you're likely aware that Donald Trump tweets. Like, a lot. An unfortunate amount, actually. And he also often takes a break from tweeting his own authored... I don't know, let's call them thoughts... to instead simply retweet any sycophanitic content he can find out there. Sometimes, in fact, he retweets things that may be infringing upon copyright.

And sometimes what he retweets is more innocent, at least in the context of intellectual property.

A video posted by Donald Trump has been removed from Twitter after a copyright claim by the rock band Nickelback.

The video took aim at the Democratic presidential candidate Joe Biden, opening with a clip of him saying he had never discussed business dealings with his son Hunter. Trump’s efforts to encourage the Ukrainian president to investigate Hunter Biden lie at the centre of an impeachment inquiry launched by House Democrats last week.

Following the Biden segment, the clip posted by Trump then cuts to a popular, if niche, meme based on an edit of the music video for the 2005 Nickelback single Photograph.

In the video Trump tweeted out, Chad Kroeger holds up a picture that shows Biden with his son and someone misleadingly labeled a Ukrainian energy exec (really, Biden's son's long term American business partner) and yes this is all stupid and insane but what can I do guys this is 2019 and I just can't anymore but I have to because life is still probably worth living right or maybe not?

Let me take a breath.

Anyhoo, that tweet no longer contains the video in question, as you can see below.

In case you cannot see that, the video was taken down at the request of the copyright owner, which in this case would either be the band or its label. It's worth noting at this point that this meme is a rather well known one, with a zillion other examples of its use all over Twitter and the internet. The chief difference between those others and Trump's tweet would be including the Bidens in the picture rather than a million other things that people have inserted into that photograph. This might lead some to scream about Twitter being biased...but not so much. Plenty of clearly conservative parties have tweeted out the video and had it remain up as of the time of this writing.

Instead, this looks like a high profile tweet by a President many people don't like got the attention of Nickelback, who didn't want their names associated with Donald Trump. And so they DMCA'd the video in Trump's tweet. Twitter, rather than putting any real thought into how widespread the meme is, whether the meme is Fair Use, or whether this actually constitutes copyright infringement, simply took the video down. Because, frankly, that's how this generally works.

Which sucks. President Trump does many, many, oh so many things that I personally find horrific. Sharing memes that aren't entirely without wit, however, isn't really one of them. And, as we've pointed out in the past, even if you hate the President, you shouldn't celebrate copyright abuse to silence his expression. That's not what copyright is for.

Filed Under: censorship, copyright, donald trump, fair use, free speech, memes, nickelback
Companies: twitter

Adland Shuts Down After Web Host Complies With Bullshit DMCA Notice

from the a-bridgestone-too-far dept

Those of you familiar with Adland will know just how useful and interesting a site it was for anyone interested in the recent history of commercial advertising. Started in 1996, the site served as a repository of commercials and a place that commented on ads and their impact on the advertising world. Cool concept. Adland has also made a fair amount of noise in being pro-copyright, dismissive of the concepts of "free" anything, and has on at least one occasion given Techdirt some shit for our stances, in this case on allowing users to turn off ads on our site.

None of that changes the fact, however, that it's a very real loss that the site has decided to shut down after its host complied with a bullshit DMCA notice from Bridgestone Tires over its hosting of an old commercial and the use of the Bridgestone name in commenting on that commercial.

So, I'm shutting down Adland right now. Why? Because the server host (for the webserver, not the data) just gave us 24 hours to leave. To "remove the domain adland.tv from our network within 24 hours" Why are they requesting this? Because Amy Tindell at Holland & Hart LLP in Boulder CO is demanding we remove a Thai Bridgestone ad from the archives. Remember "a Dog's life"? The ad from BBDO Bangkok that won silver in the Asia-Pacific Adfest in 2003? Yes, it's that one. They also claim that by writing the name "Bridgestone" we are infringing on Bridgestine's trademark. And that is why we are unceremoniously thrown off our web server host with a demand to get out in 24 hours.

To be clear: This. Is. Bullshit. The DMCA notice calls out the hosting of the commercial from well over a decade ago, but the entire point of Adland is to archive and comment upon advertisements. This is squarely fair use. As is the use of the Bridgestone name and identifiers in the context of what Adland does. Not to mention that the entire point of ads is to get them seen. Sending a takedown notice to anyone distributing what is apparently an award-winning ad makes zero sense.

As for the host, they really should know better. It's also odd to see the host demand the entire domain be removed from its services, rather than the specific content alleged to be infringing. Why in the world should Adland have to totally go over one DMCA complaint?

Interestingly, it appears that Bridgestone has been going around to other sites and DMCAing this specific commercial as well. YouTube had it, but now it has been removed. Notably, all of YouTube wasn't taken down due to the DMCA notice.

Now, there are some comments on Adland's LinkedIn posts suggesting that Bridgestone might be embarrassed at some of the content in that particular ad. But copyright is not the remedy for such embarrassment, if that is indeed what is occurring. And there was absolutely no reason that Adland should have had to shut down because of it.

Filed Under: censorship, commercials, copyright, dmca, fair use, free speech, safe harbors, super bowl ads, takedowns
Companies: adland, bridgestone

US Court Says Fair Use Nullifies French Rightholder's Attempt To Extract $2.25 Million From A California Art Scholar

from the how's-all-that-litigating-going-for-you? dept

Almost twenty-three years after a US art editor was first sued by a French company for alleged copyright infringement, a US court has told the French rightholders going after him that copyright does not work that way… at least not here in the United States. (via Courthouse News)

Photos of Pablo Picasso's artwork were taken by one of his personal friends, Christian Zervos, over the course of four decades. The rights to these 16,000 photos were obtained by Yves Sicre de Fontbrune in 1979. Several of these photos were included in books created by American art editor Alan Wofsy. Wofsy made the mistake of trying to sell these books in Paris, which resulted in the rightsholder suing him in 1996.

That lawsuit was rejected, but the Paris Court of Appeals said otherwise in 2001. It concluded that copyright infringement had occurred and that Wofsy could be held liable for $1,700 per future infringement. More than a decade later, de Fontbrune went back to the court with new claims after finding a copy of one of Wofsy's book in a French bookstore. As the federal court notes in its recitation of the facts, this 2011 legal action was a bit sketchy.

Plaintiffs asserted that, in violation of the 2001 Judgment, Defendants had continued to publish The Picasso Project. Id. at 3. The summons and complaint for the Astreinte Proceeding stated that the purchased copy contained many hundreds of Plaintiffs’ photographs, and later that the “rights to [the photographs] are the property of [Plaintiffs].” Id. at 3-4. The summons and complaint also stated that the proceedings were “for the settlement of the non-compliance penalty” of the 2001 Judgment. Id. at 4. There is no evidence that Plaintiffs ever informed the [the French court] that they no longer owned the copyrights underlying the astreinte [civil penalty]. Dkt. 70-1 at 15 (Fact 30).

So, de Fontbrune was trying to backdate the infringement to collect fines linked to copyrights it no longer owned. In addition, Wofsy was not properly served with the lawsuit, resulting in de Fontbrune moving on unopposed. After being ordered to properly serve Wofsy, another attempt was made. Wofsy apparently received this notice, but did not show up to defend himself. With the proceedings being held in Paris and Wofsy residing in San Francisco, this no-show was perhaps to be expected.

Since Wofsy wasn't there to defend himself, the French court found in favor of de Fontbrune and the IP it no longer owned. In 2012, it awarded a $2.25 million judgment to the former rightsholders, concluding that Wofsy's publication of these photos violated the 2001 ruling by the Paris Court of Appeals.

After a long discussion of French court proceedings and whether or not this decision can even be reviewed by a US federal court, the California court comes to the conclusion that it can make a ruling on the enforceability of the order issued by the Paris Appeals Court 18 years ago. And that doesn't work out well for de Fontbrune. The enforceability of foreign judgments is subject to the Recognition Act, which says these must align themselves with US laws and policies to be enforceable.

In this case, the 2001 judgment fails. Here in the United States, fair use is a thing. Because of that, the California court [PDF] says Wofsy's use of some of the 16,000 photographs is protected, which means de Fontbrune can't collect $2.25 million for infringement that didn't actually occur -- at least not under US law.

[D]efendants contend that the purpose and character of their use of the photographs should qualify as fair use. While conceding that The Picasso Project is a commercial venture, Defendants point out that their books are reference works intended for libraries, academic institutions, art collectors and auction houses, and such institutions find it an attractive reference due to its price point. Dkt. No. 70-1 at 16, 19 (Facts 33, 42). The Picasso Project also includes information about the photographed works, such as their titles, literary references, provenance, current ownership and sales information, that is generally not included in the Zervos Catalogue. Dkt. No. 70-1 at 18 (Fact 39). Plaintiffs do not contest these facts. Id. Rather, Plaintiffs argue that Defendants’ copying has a commercial purpose, which weighs against fair use. However, the mere commercial nature of a work does not create a presumption against fair use; such a presumption “would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities are generally conducted for profit in this country.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584 (1994) (citation and quotations omitted). Because Plaintiffs do not dispute that The Picasso Project is intended for libraries, academic institutions, art collectors, and auction houses, it falls within the exemplary uses named in the preamble of § 107 of the Copyright Act.

The court also points out the two publications in dispute -- the 16,000-photo Zervos Catalogue and Wofsy's "The Picasso Project" -- are not competitive products. The reproduction of photos from the Zervos Catalogue does not replace the Catalogue, nor does it even come close to diminishing its market value.

Plaintiffs argue that they are competing products, but they provide no factual basis for this position. The Picasso Project can be purchased by individual volumes for about $150 per volume. Mot. Wofsy Decl. ¶ 38. When sold as a collection of all 28 volumes, it retails for either $2,780, $3,400, or $3,780. Id.; Reply Mooney Decl. (Dkt. No. 71-1) ¶ 3 & Attachment. By contrast, the original Zervos Catalogue is only available on the second-hand market, and a 2013 reprint is only available as a complete set of all of its volumes and sells for $20,000. Dkt. No. 70- 1 at 17 (Facts 36, 37). Plaintiffs do not dispute that The Picasso Project is intended for libraries, academic institutions, art collectors, and auction houses, whereas the Zervos Catalogue has a niche market due to its historic nature and high price. Dkt. No. 70-1 at 16, 18-19 (Facts 33, 41). Given their disparate markets and wildly different price points, no reasonable fact finder could conclude that the Zervos Catalogue and The Picasso Project compete.

Since three of the four factors weigh heavily in favor of Wofsy and his Picasso Project, the 2012 judgment de Fontbrune secured in France cannot be enforced in the United States.

[T]he court finds that the Defendants’ use of Plaintiffs’ photographs qualifies as fair use. The 2012 Judgment is, therefore at odds to the U.S. public policy promoting criticism, teaching, scholarship, and research. Defendants have carried their burden of showing that there is no genuine issue of material fact that the 2012 Judgment is repugnant to U.S. public policy.

Having reached this conclusion, the court will not recognize the 2012 Judgment.

And away goes a $2.25 million judgment that may have been awarded to de Fontbrune for works it had already sold the rights to. Fair use prevails and de Fontbrune will have to figure out some other form of rent-seeking if it wants to continue profiting from photos someone else took.

Filed Under: alan wofsy, christian zervos, copyright, fair use, france, jurisdiction, pablo picasso, us, yves sicre de fontbrune

That Time EFF Got A Copyright Takedown Demand Of Its Own Artwork

from the you-have-to-be-kidding dept

Earlier this week, EFF received an email claiming that our body-camera police officer illustration (shown in the banner above) violated the sender's copyright in a graphic they used to illustrate a tweet (cropped screenshot shown below). The email demanded we remove the image or provide a link to their e-commerce website, which sells police body cameras. For those interested in Search Engine Optimization (SEO), a link from EFF can be very beneficial to their page ranking. The funny thing was, the police officer illustration is an original EFF work.

It's not a problem for someone to use our works in their own—they are available to the public under a Creative Commons attribution license—but that certainly doesn't give a claim against our original. And their graphic had no attribution. (The Action Camera skateboarder illustration on the left appears to be an Adobe stock image.)

For EFF, this was more amusing than threatening. We knew instantly that we needn't worry about the implied threat, and if things went badly, we probably have more IP litigators per capita than any entity that's not a boutique IP litigation firm. So, we wrote back explaining the situation, and expect that will be the end of this.

But for many entities, it can be quite scary. Even if they are secure in their rights, the potential for a costly or time-consuming conflict may lead to a rational choice that a link is a low-cost solution. They might wonder if this misunderstanding will escalate into a DMCA takedown, potentially interfering with the availability of the page until the improper notice is resolved. Even if they disregard such a weak threat, dealing with it has the serious potential to take time away from running their operation.

We have not named the email's sender. There is no indication that they are in the business of copyright trolling, it likely was a simple mistake, and we had no desire to use our platform to mobilize a shame campaign. Moreover, we're well aware of the Streisand effect and see no need to provide the very link they seek in our discussion of why they shouldn't have demanded a link. Instead, we hope that this example serves to show how copyright demands can be misused. Below is our response:

Dear [NAME REDACTED],

I am the General Counsel of the Electronic Frontier Foundation (EFF) and am writing in response to your email of September 10, in which you asserted that the illustration of a police officer in our Body Warn Camera page, https://www.eff.org/pages/body-worn-cameras, violated your company's rights in the image used in your July 4 tweet, and demanded that we remove the illustration or provide a commercial link to your company on the eff.org website.

As an initial matter, please allow me to correct a fundamental mistake. The illustration on our page is an original image created by the Electronic Frontier Foundation, specifically our talented Art Director Hugh D'Andrade. Accordingly, you have no right to ask EFF, or anyone else, to remove our illustration, much less to provide your company with links or other benefits in exchange for its use. To the extent that you have sent similar demands to anyone else regarding our illustration, you will need to retract them immediately.

This is not to say that you can never use our illustration. In addition to your rights under fair use and fair dealing, EFF makes its content available under the Creative Commons Attribution 3.0 United States (CC BY 3.0 US) license, see https://www.eff.org/copyright. Thus, you would have had permission to use our illustration in your tweet if you had simply complied with the attribution requirement. If you wish to continue to use the police officer illustration, please be sure to comply with these license terms.

Finally, while we understand your desire to get links to your company's website (and the SEO value of a link from EFF), we are disappointed and surprised that you would use copyright threats to try to make that happen. Baseless copyright threats are an ongoing problem for the Internet (see examples in our Takedown Hall of Shame https://www.eff.org/takedowns). Rather than contributing to that problem, we suggest that you and your company endeavor to earn that attention through the quality of your offerings.

In order to better educate the public about the issues with copyright demands, please note that we are blogging about your email and this response, but will endeavor to keep your name and the name of your company out of it.

Please let me know if you have any further questions.

best regards,

Kurt

-------------------------------
Kurt Opsahl, kurt@eff.org
Deputy Executive Director and General Counsel
Electronic Frontier Foundation https://www.eff.org/
ph: +1 415.436.9333 x 106 \\ fx: +1 415.436.9993 \\ @kurtopsahl

Reprinted from the EFF's Deeplinks blog.

Filed Under: cc-by, copyright, dmca, fair use, takedown
Companies: eff

Why Is MLB Claiming Revenue From Obviously Fair Use Videos On YouTube?

from the forks-and-sandwiches dept

Nearly a decade ago, we wrote a bunch about an excellent book called Copyfraud, by law professor Jason Mazzone, which went into great detail about how the legacy entertainment industry companies have used copyright in ways that are clearly against copyright's intent -- to the point that they border on fraud. The concept of copyfraud should be referred to more frequently, and here's a perfect example. Just a couple months ago, we wrote about the amazing social media account of Jimmy O'Brien, who goes by @Jomboy_ on Twitter. He's combined his love of baseball, his video editing skills, his ability to read lips incredibly well, and with a sarcastic, dry sense of humor to make a ton of amazing videos about various things happening in baseball. We highlighted a bunch last time around and his profile has only grown a lot since then, including among Major League Baseball players.

About a month after that post, Jomboy may have had his biggest moment so far, in putting together a truly amazing video of NY Yankees manager Aaron Boone getting ejected -- following a bunch of players and Boone arguing with a young umpire over some bad calls. What took the video from normal great to amazing was that it revealed exactly what Boone was saying to the ump during their argument thanks to a bunch of "hot mics" from the broadcast. That allowed us to learn a lot more about this argument than anyone normally does in watching a manager scream at an ump:

That video alone went crazy viral and launched an even more viral meme in the phrase "fucking savages," that is now on tons of t-shirts. Yankee fans have embraced it. The players have embraced it. By any stretch of the imagination, this was actually great for the game of baseball.

So, of course, Major League Baseball wants to kill it. Because that's what MLB does. MLB's head of discipline (and a former Yankee manager himself), Joe Torre is apparently really really upset about these hot mic videos that have gotten fans so excited about the game. Because how dare fans learn about the personalities of the people in the game.

The preponderance of that information has become more common lately, as microphones have picked up what’s said on the field, leaving little to the imagination. Torre will take the information, but he’d rather it wasn’t available to anyone with a Twitter account.

“That’s not the way I want to hear it, for everybody else to hear it,’’ Torre said Tuesday at Yankee Stadium. “I wish I could hear it, only. It makes it easy to make my decision.”

Apparently, Torre met with Boone to "discuss" the hot mic "issue" (there is no issue), leading one of the Yankees' beat reporters, Bryan Hoch, to point out that this meeting was really happening because someone like Jomboy made a video:

So, first of all, this is incredibly dumb on MLB and Torre's part. Torre, of course, has famously had his own hot mic moments during ejections as well.

But it gets dumber, and it involves out and out copyfraud.

In response to Hoch's comment, a Twitter user joked that MLB doesn't want Jomboy "profiting off their backs." To which Jomboy noted that MLB "claims" all of his videos on YouTube, so when he has videos that get millions of views (as many of his do), it's MLB collecting the revenue.

Someone rightly points out that "it seems way beyond fair use" and Jomboy notes that he tried that once, but YouTube rejected it:

This all seems ridiculous for a whole variety of reasons. First off, this does appear to be quintessential fair use. It's a (tiny) portion of the video. It's done for reporting purposes, it's arguably transformative (the videos show a very different side of the game), and it seems to only increase the potential market for baseball, not decrease it. But, because of the system YouTube has set up here, MLB gets the money.

No one is watching these videos as a replacement for MLB content. They're watching it to get Jomboy's insight, humor, lip reading skills and such. And yet, MLB is getting the money.

That's blatant copyfraud.

I'm sure O'Brien has little interest in antagonizing MLB (which should be celebrating him rather than worrying about his videos), so he probably has no interest in fighting this with a lawyer. But, again, that demonstrates MLB's abuse of power here. It knows that it can take the money from Jomboy's work and he can't push back very hard or he'll run into other problems with MLB.

Either way, I'm wondering about all those folks who show up in our comments saying stuff about how strong copyright is necessary to "protect creators" feel about this situation? Here a creator is getting robbed of revenue he should legitimately have earned, because YouTube is handing it to a giant corporation instead.

Filed Under: breakdowns, copyfraud, copyright, fair use, jobboy, revenue
Companies: mlb, youtube

Popular Stream-Ripping Site Declines To Play Whac-A-Mole With YouTube

from the fine-you-win dept

We have been talking these past few weeks about a strange game of whac-a-mole currently being played between YouTube and a whole bunch of stream-ripping websites. While stream-ripping sites have been targeted by the music industry specifically for some time now, despite a wide range of non-infringing uses of such technology, it was only recently that YouTube decided to participate in all of this by blocking access to its platform for many of these sites. Built around claims of ToS violations, it's fairly clear that YouTube's actual goal in all of this is to appear to be attempting to bow to the music industry's wishes. Despite the blocks, many of these sites have managed to route around the blockade, thus the game of whac-a-mole.

But not all such sites have taken this stance. Onlinevideoconverter.com, which initially routed around the block, has since announced that it is voluntarily leaving the hide-and-seek game and will simply stop converting YouTube videos itself.

However, the team behind the site isn’t planning to keep up this fight. People who access the stream-ripper today will notice that YouTube downloads have stopped working again. A site representative informs TorrentFreak that this is intentional.

“In view of YouTube’s latest stance, we’ve decided to disable the conversion of all YouTube videos on our service,” OVC says.

The stream-ripping site notes that the decision was taken voluntarily and not after it was contacted directly by rightsholders or YouTube. OVC simply believes that it’s the best direction to take and it stresses that other downloading and conversion tools remain available.

While other sites are still keeping up with the game, the exit of OVC is significant, as it is certainly one of the most popular stream-ripping sites on the internet. This may, of course, have been part of YouTube's overall plan. While its initial strike wasn't particularly effective, perhaps it actually was if seen as something of a warning shot. Google and YouTube have a ton of legal and influential weight to throw around, after all, and taking this initial action was bound to be enough to spook some sites.

Which is a shame, actually. The fact remains that these sites have legitimate uses. I've used them in the past for publicly available lectures and educational material from technology manufacturers that have no reason to view an audio rip as problematic. And, again, what about the artists out there who actually embrace what the internet can offer and want their work made as widely available as possible?

They don't matter in this fight, apparently. And that's a reality the music industry, and apparently now YouTube, can't seem to recognize.

Filed Under: copyright, culture, fair use, stream ripping, whac-a-mole
Companies: onlinevideoconverter, youtube

YouTube Finally Demands Specificity From Copyright Claimants

from the hopefully-this-will-limit-abuse-of-the-system dept

At long last, YouTube is rolling out changes to its copyright claim system. For years, it has been heavily-slanted in favor of copyright claimants. Concessions made by YouTube to legacy industries screwed the whole thing up, giving claimants credibility they hadn't earned in exchange for… a free platform to distribute their content with. Win-win for them. Lose-lose for everyone else.

Add to this the whole "ContentID" clusterfuck and you have a mess. It's a mess that results in the sort of dystopian outcomes no one ever expected from an online video platform. Straight-up weird stuff that would be considered well past the bounds of suspension of disbelief if it appeared in speculative fiction. Bird calls getting hit with copyright claims. White noise videos being flagged multiple times by multiple (lol) rights holders. Copyright owners nuking other people's original creations due to flaws in the auto-moderation. Creators being told the best person to take up a copyright dispute with is... themselves.

Stupid stuff happens. Content moderation at the scale of YouTube (500 hours per minute) is impossible. Software helps but what YouTube uses hurts as often as it helps. The pressure coming down on the platform from major rights holders never eases up. As a result, those facing copyright claims have spent years fighting blind and deaf, with almost no help from YouTube in pushing back against bogus takedown efforts. Abuse isn't just the name of the game: it is the game.

So, here's some good news, several years and millions of hours of uploads later, via Jacob Katrenakes of The Verge.

YouTube is updating the way it handles manual copyright claims with changes that should make them much less of a headache for video creators.

Owners of copyrighted content — like a record label or a movie studio — will now have to say exactly where in a video their copyrighted material appears, which they didn’t have to do in the past when manually reporting infringement. That’ll allow creators to easily verify whether or not a claim is legitimate and to then edit out the content if they don’t want to deal with the repercussions, like losing revenue or having the video taken down.

The full rollout is discussed in more detail on YouTube's blog. It still appears YouTube is struggling to stop videos containing short, incidental clips of music from being flagged by its ContentID system.

We also heard firsthand that our Manual Claiming system was increasingly being used to claim very short (in some cases one second) content or incidental content like when a creator walks past a store playing a few seconds of music. We were already looking into this issue but hearing this directly from creators was vital. We are exploring improvements in striking the right balance between copyright owners and creators.

I'm sure that "striking the right balance" is the correct goal, but the real test of YouTube's improvements will be where this balance lies. So far, the "balance" heavily favors incumbent industry figures with large legal teams. Fair use isn't a defense when copyright claims are made and everyone hit with a potential strike is considered to be an infringer. At least now, they'll be able to avoid strikes a little easier, but the system is still tilted and presumes the claimant is correct and it's the recipient of the notice who must make changes to avoid losing their income or their account… or both.

This is not to say what's being implemented here is worthless or unwelcome. This is very much a step in the right direction. Given the history of copyright claim abuse, something had to be done and this is actually, and kind of sadly, more than was expected. This isn't because YouTube doesn't want to protect its millions of uploaders. It's because legacy industry execs don't want YouTube to protect anyone but them.

This is good and hopefully it continues to improve. Until then, we'll be here to cover as many abuses of this purposefully-broken system as we can.

Filed Under: contentid, copyright, fair use, monetization, specificity, videos
Companies: youtube

Big Fair Use Win Concerning Andy Warhol's Paintings Of Prince

from the fair-use-prevails-again dept

A decade ago, you may recall, there was a big copyright fight concerning the iconic "Hope" poster that artist Shepard Fairey had created for the Obama campaign. The Associated Press realized that Fairey had used one of its photos as the "model" for making the poster, and started demanding money (there was also a side issue where the actual photographer kept changing his story, first claiming he was thrilled that Fairey had used it, then arguing that the copyright on the photo was his and not the AP's, and then getting angry at Fairey). Eventually Fairey filed for declaratory judgment of non-infringement, against the AP, arguing that his use was covered by fair use. We argued at the time that he had a very strong case. However, Fairey poisoned his own position in the lawsuit by stupidly first (falsely) claiming he had used a different photograph as the basis for his poster and then destroying evidence about which photo he had used. That's bad. Really bad. So, it wasn't a huge surprise to see Fairey eventually agree to just settle the lawsuit, rather than fight for the fair use ruling, since the case was so muddied by his own early actions.

But, for those of us who value fair use, this was disappointing, because it would have been nice to have had a clear fair use ruling in that case.

However, now, a decade later, we do have a ruling in a case that has some similarities to the Fairey/Obama/Hope/AP case, though, oddly, on photographs and paintings that are much older. And this one also involves two incredibly well-known figures: the artist Andy Warhol and the musician Prince. There's a fair bit of background to this story, so stick with me, but the short version is that a photographer, Lynn Goldsmith, took a bunch of photos of Prince in 1981. In 1984, Vanity Fair magazine (owned by Conde Nast) licensed Goldsmith's photographs for an article the magazine was doing about Prince. The magazine then commissioned Warhol to do a painting of Prince based on Goldsmith's photographs. That resulted in this 1984 spread:

Apparently Warhol actually created a bunch of paintings based on Goldsmith's photographs, most of which have been sold, and a few of which are now in the Warhol museum. You can see all the images in the original complaint in this case.

After Prince died, Vanity Fair reran its article, and then teamed up with some other Conde Nast publications, and put out a special magazine called "The Genius of Prince" using one of Warhol's other portraits.

There was some procedural oddness in all of this -- because Goldsmith claims that she knew about none of this until after that "The Genius of Prince" magazine came out (even though she had licensed a photograph to Vanity Fair, it appears that there was some confusion about that, and at least Goldsmith claims she was never aware of the Warhol portrait based on her photograph back in the 1980s). Goldsmith contacted the Andy Warhol Foundation about the portrait, arguing that it was infringement. The Foundation then filed for declaratory judgment against Goldsmith. It made a bunch of arguments, including that the statute of limitations (three years) had run out, but most of the case focused on the 2016 magazine, which made it still well within the statute of limitations.

Either way, the court notes that those other issues don't much matter, because this is an easy fair use call. As the court says, "it is plain that the Prince Series works are protected by fair use."

It runs through the standard four factor test, finding that the first, third and fourth factors all lean towards fair use, and the second factor is merely "neutral." The judge finds them transformative:

In any event, the Prince Series works are transformative, and therefore the import of their (limited) commercial nature is diluted. If "looking at the [works] side-by-side," the secondary work "ha[s] a different character, . . . a new expression, and employ[s] new aesthetics with creative and communicative results distinct" from the original, the secondary work is transformative as a matter of law. Cariou, 714 F.3d at 707-08. The Court must "examine how the [Prince Series works] may 'reasonably be perceived' in order to assess their transformative nature." See id; at 707 (quoting Campbell, 510 U.S. at 582).

Each of the Prince Series works may reasonably be perceived to be transformative of the Goldsmith Prince Photograph. As Goldsmith has confirmed, her photographic work centers on helping others formulate their identities, which she aims to capture and reveal through her photography. Her photoshoot illustrated that Prince is "not a comfortable person" and that he is a "vulnerable human being."... The Goldsmith Prince Photograph reflects these qualities.

Warhol's Prince Series, in contrast, can reasonably be perceived to reflect the opposite. In all but one of the works, Prince's torso is removed and his face and a small portion of his neckline are brought to the forefront. The details of Prince's bone structure that appear crisply in the photograph, which Goldsmith sought to emphasize, are softened in several of the Prince Series works and outlined or shaded in the others. Prince appears as a flat, two-dimensional figure in Warhol's works, rather than the detailed, three-dimensional being in Goldsmith's photograph. Moreover, many of Warhol's Prince Series works contain loud, unnatural colors, in stark contrast with the black-and-white original photograph. And Warhol's few colorless works appear as rough sketches in which Prince's expression is almost entirely lost from the original.

These alterations result in an aesthetic and character different from the original. The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. The humanity Prince embodies in Goldsmith's photograph is gone. Moreover, each Prince Series work is immediately recognizable as a "Warhol" rather than as a photograph of Prince in the same way that Warhol's famous representations of Marilyn Monroe and Mao are recognizable as "Warhols," not as realistic photographs of those persons.

There is then a footnote that throws a bit of shade towards Goldsmith's lawyer suggesting that the test for fair use is "you know it when you see it," by pointing out that anyone looking at the Warhol paintings of Prince would "know" that these are works of Warhol, and not the photographer Goldsmith.

For what it's worth, part of the analysis of the third factor is also quite interesting -- and hearkens back to our recent post about the copyright lawsuit over a Gigi Hadid photo, in which one of the issues is whether or not Hadid "posing" for a paparazzi photograph contributed to the copyright in the photograph, and also whether poses not "created" by the photographer were even subject to copyright protection. Here, the judge points out that the pose in the Prince photograph Goldsmith took is probably not copyright-eligible, since Prince was known to stand like that:

Although the pose and angle of Prince's head were copied from the photograph to the Prince Series, "such a pose cannot be copyrighted" because copyright law "protect[s] only plaintiff's particular photographic expression of pose[] and not the underlying ideas therefor." See Kate Spade, 388 F. Supp. 2d at 393 (quotation marks omitted). And several non-Goldsmith photographs capture Prince in a similar pose, indicating that the pose is not particularly original.... Finally, to the extent that Prince's facial features remain in Warhol's works, the features themselves are not copyrightable, see Mattel, 365 F.3d at 136, and the distinctive (and therefore copyrightable) way in which Goldsmith presented those features is absent from the Prince Series works. Each Prince Series work contains little, if any, of the copyrightable elements of the Goldsmith Prince Photograph.

In short, although Warhol initially used Prince's head and neckline as they appear in the Goldsmith Prince Photograph, Warhol removed nearly all the photograph's protectible elements in creating the Prince Series. In doing so, Warhol transformed Goldsmith's work "into something new and different and, as a result, this factor weighs heavily" in favor.

All of that certainly seems like it would have been relevant in the Obama/Fairey/AP case as well.

Of course, if true, this also suggests that the Foundation wouldn't even need fair use to prevail, but could prevail solely because none of the copyrightable elements were copied.

The fourth factor analysis is also interesting. The court notes that even though Goldsmith hasn't licensed the photographs from her 1981 photoshoot, that doesn't mean she couldn't in the future. But it also notes that even though other Goldsmith photos are used in magazines and album covers, people licensing Warhol paintings are doing so because they want Warhol. Not because they want Goldsmith.

Goldsmith's evidence and arguments do not show that the Prince Series works are market substitutes for her photograph. She provides no reason to conclude that potential licensees will view Warhol's Prince Series, consisting of stylized works manifesting a uniquely Warhol aesthetic, as a substitute for her intimate and realistic photograph of Prince. Although Goldsmith points out that her photographs and Warhol's works have both appeared in magazines and on album covers, this does not suggest that a magazine or record company would license a transformative Warhol work in lieu of a realistic Goldsmith photograph. Moreover, Goldsmith does not specify the types of magazines and album covers on which she and Warhol appear, and whether they are similar. Put simply, the licensing market for Warhol prints is for "Warhols." This market is distinct from the licensing market for photographs like Goldsmith's a market which Goldsmith has not even attempted to enter into with her Prince photographs.

Goldsmith has said that she's planning to appeal the ruling, but also gave a really silly quote to Artnet:

Goldsmith, meanwhile, plans to appeal. “I know that some people think that I started this, and I’m trying to make money. That’s ridiculous—the Warhol Foundation sued me first for my own copyrighted photograph,” she told artnet News.

That ignores (or misunderstands?) the fact that this was a filing for declaratory judgment, which was filed only after Goldsmith had threatened to sue if she wasn't paid. From the complaint:

Despite knowing that Warhol’s portraits are a protected fair use, Defendants have attempted to extort a settlement from the Foundation. Goldsmith herself made this clear when she wrote in another public Facebook post dated January 5, 2015, “It is a crime that so many ‘artists’ can get away with taking photographers images and painting on them or doing whatever to them without asking permission of the ‘artist’ who created the image in the first place.”

The complaint also details Goldsmith posting about other, similar (and very relevant) fair use rulings to suggest that Goldsmith completely understood how such paintings were considered fair use (even if she didn't like the rulings), including this Facebook post mentioned in the complaint:

For example, on January 6, 2015, she wrote a public Facebook post stating, “I’m pretty knowledgeable about copyright laws and they are changing as Francoise Kirkland pointed out due to the latest ruling in the RIchard [sic] Prince case...they are not changing in our favor.”

So, to argue that this was Warhol suing, while technically accurate, is misleading. That lawsuit was for declaratory judgment (basically asking the judge to say, "this doesn't infringe," so that it doesn't have to keep dealing with threats of a lawsuit and demands for money), and only came after Goldsmith or her representatives had requested money and threatened to sue.

The appeal in this case, assuming it goes forward, will be worth following as well, and hopefully reinforces the district court's clear fair use ruling. Thankfully, the case will be in the 2nd Circuit, which tends to put out pretty good fair use rulings.

Filed Under: andy warhol, copyright, fair use, lynn goldsmith, prince, shepard fairey, transformative
Companies: andy warhol foundation