Youtube copyright infringement

[kentcarlevi]

Hi,
State of California.
I'm not from US so I'm not familiar with American law, that's why I'm writing this question
I've been having a Youtube channel for more than 3 years and it has become fairly popular with more than 9 million hits. I've posted videos of me playing the guitar to pre-recorded backing tracks (non copyrighted). It's mostly Van Halen but also some other artists, where ZZ Top is now the topic.. I did 3 songs by them with the camera mounted on the neck for instructional use but I did improvise a great deal of it to give it my own spin. I made it clear it was a cover so there's no chance that someone could have misinterpreted that.

Stage Three Music, (short STM) representing ZZ Top, filed a complaint about a year ago and Youtube pulled that video. I thought it was misidentified and didn't bother doing any counter notice but let it rest. Apparently they did another complaint a few month ago and the second video was pulled. Problem is I didn't catch that until they filed the 3rd complain and pulled the last one a month ago (log shows I was never logged on between second and third). Then this became a "third strike and you're out" so my channel is now disabled.
I filed a counter notice and STM then contacted me asking if I could take the videos offline voluntarily and we could let it rest with that. I agreed as I didn’t want to make a big fuzz about it but STM refused to take the original complaint back (saying they were "unable to") meaning Youtube refuses to reinstate my account since I’m a “repeated offender” and the fact that STM refuse to take the initial complain back and here we are..

Youtube says my covers are violating the 512(f) in Digital Millennium Copyright Act. (f) states
” (f) Misrepresentations. - Any person who knowingly materially misrepresents under this section — (1) that material or activity is infringing, or(2) that material or activity was removed or disabled by mistake or misidentification,”

For reference other people have uploaded the videos again when my account was suspended. These are the 3 videos I’m referring to, in order they were pulled:
http://www.youtube.com/watch?v=fk6-gqcUGzk
http://www.youtube.com/watch?v=9GFri5VQeE4
http://www.youtube.com/watch?v=nosJ2eYUFeI

I did not misrepresent anything, the nature of the video made it clear it was a cover, there were nil original content and I also specified it was an interpretation in the video description. My understanding it would be fair use but as I said, I don't know American law.

So, to my question, do I have a case?

Kind regards,
Kent Carlevi

 

[DAD10]

I don't know but your play a mean guitar

 

[FlyingRon]

It isn't FAIR USE in the least. You can not make covers of peoples music without dealing with the licensing issues. Further, sync rights such as required here for making videos are not governed by either compulsory royalties (as records are), nor in the Google contracts with the various industry groups.

Google is free to suspend your account to YouTube for repeated violations.

There's no legal redress available to you here.

 

[kentcarlevi]

Thank you for the quick response.
I have found a mother that posted a video of her son dancing to a Michael Jackson song where the court found that to be fair use. If someone can post actual original content, how can me playing a song (covering, interpreting or however you choose to describe it) without any original content at all being considered copyrighted? Where does it start and where does it end? If I play a riff that is just similar to someone else, is that to be copyrighted?
If that's so there's something clearly wrong with the laws written imho.

I perfectly understand you need to protect the creator of a work, and I agree and defend that system, but if someone interpret it in their own way, not doing it for personal gain or money and there's no way the artist/creator can suffer any harm, then it should not go under copyright law - it just makes no sense

If I draw a painting that's similar to Mona Lisa and post a picture of it online, is that copyrighted (disregard the fact it's old and probably not protected under the laws of copyright any more)? My understanding is if you make a copy, tries to sell it as "Monus Lisus", it's another thing and a clear case of "(f) Misrepresentations".

After all, the laws are there to protect the creator/owner and if there is no way they can be harmed the laws should not be applicable, that's atleast how the laws in my country works.

 

[The Occultist]

Misrepresentation? Boy you are confused (probably due to being outside of the US). In the US, as long as you don't infringe on a copyright, it is perfectly legal to claim that you created a work even if you didn't.

As far as "Fair Use" goes, it is not a magical expression where if you shout it lawsuits disappear. Fair Use is a defense used as part of a costly lawsuit, and is determined at the end of said expensive lawsuit.

 

[FlyingRon]

Thank you for the quick response.
I have found a mother that posted a video of her son dancing to a Michael Jackson song where the court found that to be fair use. If someone can post actual original content, how can me playing a song (covering, interpreting or however you choose to describe it) without any original content at all being considered copyrighted?

You don't seem to understand what copyright is at all. It's all copyrighted. What you don't have is permissive use. The people whose copyright you infringed complained. Michael Jackson's people didn't (in fact, there appears to be some deal between google and much of the industry for such permissive use.

Where does it start and where does it end?

It starts by assuming that everything is copyrighted and you need permission. Just because others are apparently getting away with it doesn't make your use legitimate.

If I play a riff that is just similar to someone else, is that to be copyrighted?
If that's so there's something clearly wrong with the laws written imho.

Depends if you stole the riff from them or if it was just coincidentally similar. Men at Work lost a big action for the repeated use of the "Kookaberra Tree" riff in "Land Down Under" for example.

I perfectly understand you need to protect the creator of a work, and I agree and defend that system, but if someone interpret it in their own way, not doing it for personal gain or money and there's no way the artist/creator can suffer any harm, then it should not go under copyright law - it just makes no sense

THis is a warped interpretation. Whether you are making money isn't the criteria that determines infringement in most cases. And the fact that you aren't making money, doesn't mean that you aren't cutting into the rights holders property rights (and google is certainly making money off the both of you).

If I draw a painting that's similar to Mona Lisa and post a picture of it online, is that copyrighted (disregard the fact it's old and probably not protected under the laws of copyright any more)? My understanding is if you make a copy, tries to sell it as "Monus Lisus", it's another thing and a clear case of "(f) Misrepresentations".

Misrepresentation is a different issue than copyright. If the Mona Lisa was recent enough to be protected by copyright, you couldn't make a copy or derivative work of it whether you called it the Mona Lisa or Smiling Girl.

After all, the laws are there to protect the creator/owner and if there is no way they can be harmed the laws should not be applicable, that's atleast how the laws in my country works.

I don't know what COUNTRY you are from, but it does not work that way in most of the civilized world (at least the 160+ countries that are signatories of the Berne convention) and whatever disregard your country has for copyright has no bearing on the UNITED STATES which is the subject matter of this web site and what applies to YouTube / Google.

 

[kentcarlevi]

Misrepresentation is a different issue than copyright. If the Mona Lisa was recent enough to be protected by copyright, you couldn't make a copy or derivative work of it whether you called it the Mona Lisa or Smiling Girl.

So if I would paint something that looked similar and put the painting on my wall so people could accidently see it through my window then I'm a felon? .. or not? If I put on my porch for everyone to see it a bit better? How about if I take a picture of it and show friends on facebook?

Point is there must be somewhere to draw the line to be able to claim copyright. Is it when made public? What defines "public"? You say personal gain has nothing to do with it, ok I hear what you're saying and you're probably right but it still does not make any sense at all imho.

I came to this forum and asked if I had a case and apparently I do not, I'm not slow. I got my answer and I'm thankful for that!

But I have to note that I think the rules in US are extremely silly if this is how it's suppose to play out. I can't but help, almost, wishing the music industry going down listening to the them going after fans that tries to interpret their songs for fun while millions of actual copies are being spread through illegal websites (where the actual threat to them is). They used to have my sympathy but no longer and ironic is I've got a lot of emails and read many comments from ZZ fans saying they are turning their back on the "greedy b..rds now". I wonder who's the winner, no one it seems.

 

[kentcarlevi]

Ok, we've settled that my playing and my video was still copyrighted by them

But here's another question.
Me and Stage Three came to an agreement that I take the videos offline and they told youtube that no further actions required. The only complains I've had during my 3 year period has been from Stage Three on three occasions leading up to my account being suspended. Youtube refuses to reinstate the account even though I now have an agreement with the copyright owners. They claim they can't according to "federal law", is that so?
If my agreement is with the copyright owners and they are happy with it, why are youtube making this so hard claiming it's the law? Maybe they want this to see the court? I don't get it.

 

[The Occultist]

Ok, we've settled that my playing and my video was still copyrighted by them

But here's another question.
Me and Stage Three came to an agreement that I take the videos offline and they told youtube that no further actions required. The only complains I've had during my 3 year period has been from Stage Three on three occasions leading up to my account being suspended. Youtube refuses to reinstate the account even though I now have an agreement with the copyright owners. They claim they can't according to "federal law", is that so?
If my agreement is with the copyright owners and they are happy with it, why are youtube making this so hard claiming it's the law? Maybe they want this to see the court? I don't get it.

YouTube can do whatever they want with their website. Your question about this is no longer a legal issue, so there is nothing we can help you with.

 

[kentcarlevi]

YouTube can do whatever they want with their website. Your question about this is no longer a legal issue, so there is nothing we can help you with.

Does "federal law" state that they can't reinstate the account even though I have an agreement with the copyright holder?

 

[FlyingRon]

Does "federal law" state that they can't reinstate the account even though I have an agreement with the copyright holder?

Federal law has no bearing. YouTube is free to reinstate you or NOT at their option.