YouTube Copyright Takedown & Fair Use

[MegFaulk]

Hi everyone!

So this morning my video got taken down due to the song being copyrighted. I typed up this rebuttal and wanted some opinions on it. I’m arguing that the song used was done so under fair use. Here’s the email I want to send:

Hello,

This morning I received a copyright strike on my video, BM | SK/AT. I have good faith and steadily believe that the music used in this video is classified under fair use for the following reasons:

1) This video helps the market through free advertising. AT has a large fanbase, and this video is sure to gather views, advertising FFDP's song for free. In the video, I also hold the song in a positive/transformative light. If anything, this is a tribute to BM by FFDP as played alongside AT.

2) This video is transformative in nature. I boost the ideas of AT with the music used in this video. I tweak and twist and manipulate clips to match the song, transforming the music as well by shaping it to fit the world of AT.

3) This video uses no more of the original than necessary.

4) This video does not compete with the original work and could have no negative affect on its market. As I stated before, this is a tribute to both sides of the video—both the footage used and the song inserted.

I hope you can reconsider the copyright takedown, as I really wish to share this video with the YouTube community.

Thank you for your consideration,

 

[quincy]

Your post is being removed temporarily to have all personal identifying information edited out.

I see several problems with the DMCA counternotice that you are considering filing.

 

[MegFaulk]

Your post is being removed temporarily to have all personal identifying information edited out.

I see several problems with the DMCA counternotice that you are considering filing.

Thank you for the response. Could you tell me what the issues are and how to fix them?

 

[quincy]

Thank you for the response. Could you tell me what the issues are and how to fix them?

I will be happy to tell you the concerns I have with your counternotice but I prefer to wait for the return of your original post to this thread.

I will tell you right now that a claim that your video promotes the copyrighted work is not going to fly as a fair use. A copyright holder is granted an exclusive right to determine how his work is presented to the public.

If you can check back later, I will have additional comments.

Thanks for being patient.

 

[MegFaulk]

I will be happy to tell you the concerns I have with your counternotice but I prefer to wait for the return of your original post to this thread.

I will tell you right now that a claim that your video promotes the copyrighted work is not going to fly as a fair use. A copyright holder is granted an exclusive right to determine how his work is presented to the public.

If you can check back later, I will have additional comments.

Thanks for being patient.

It’s a little confusing because I’ve given statements very similar to my original post and I’ve gotten the copyright strikes waived.

 

[quincy]

It’s a little confusing because I’ve given statements very similar to my original post and I’ve gotten the copyright strikes waived.

Interesting.

Perhaps the copyright holder chose not to seek an injunction or file suit for infringement, which is the response a copyright holder makes to a counternotice.

If the copyright holder has no interest in pursuing a legal action, I suppose pretty much any truly believed reason given on the counternotice could be adequate. And providing a reason is not really necessary beyond saying, under penalty of perjury, you believe the video was removed in error.

 

[quincy]

It’s a little confusing because I’ve given statements very similar to my original post and I’ve gotten the copyright strikes waived.

Before I add additional information (I see your post has been edited), I have a question about what you said in the quote above.

Why if your previous counternotices were successful in restoring your works to their places online are you now concerned your "very similar" counternotice won't do the same with this latest work? Do you know this particular copyright holder to be more aggressive against infringers?

 

[MegFaulk]

Before I add additional information (I see your post has been edited), I have a question about what you said in the quote above.

Why if your previous counternotices were successful in restoring your works to their places online are you now concerned your "very similar" counternotice won't do the same with this latest work? Do you know this particular copyright holder to be more aggressive against infringers?

Not exactly. From what I gather, they’re a company that’s known to be leinient with strikes. I’ll email them and see what pops up in return. Thank you for your response!

 

[quincy]

Not exactly. From what I gather, theyÂ’re a company thatÂ’s known to be leinient with strikes. IÂ’ll email them and see what pops up in return. Thank you for your response!

You are not submitting counternotices to the web host but instead you have been emailing the copyright holders directly with your reasons why you believe your works should be restored to their places online?

If you send a counternotice to the web host, the web host sends it on to the copyright holder - and the copyright holder then has ten days to respond. The copyright holder has to decide whether to file a claim. Your content can be replaced unless the copyright holder takes legal action.

There is a risk to submitting a counternotice if you are not convinced you have a solid legal defense to your use of the copyrighted material. A counternotice can spur a copyright holder into suing when the copyright holder otherwise might be content to just have the infringing material removed.

I can't tell you if the amount of copyrighted material you used in your video would be considered de minimis (trivial) or too much or a fair use. I can't tell you if your work would be judged a derivative or transformative. I can't tell you if a copyright holder would agree with your assessment that your work reflects positively on the original.

I CAN tell you that "tributes" and "fan" works have led to lawsuits in the past. Arguing that your work is "free advertising" for the copyright holder and his copyrighted work has not worked as a defense to infringement lawsuits in the past. And I can tell you that "fair use" is an affirmative defense to a copyright infringement suit and not permission to use copyrighted material.

Here is a link to Stanford University's overview of the four primary factors a court looks at when determining if a use of another's copyrighted material falls within the Copyright Act's fair use guidelines: https://fairuse.stanford.edu/overview/fair-use/four-factors/

I suggest you have your video personally reviewed by an IP professional in your area before you contact the copyright holder. We cannot do personal reviews on this site.