UPDATE: On January 10th, less than 48 hours after I published this blog post, I received a one line email from The YouTube Team stating simply “The content has been reinstated.” No explanation or other information was provided. But Buffy vs Edward is now back on YouTube and can be viewed here. The copyright infringement “strike” also appears to be gone as my account is once again in good standing. Read the rest of the story below.
It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.
Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, Entertainment Weekly and discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.
This past summer, together with the Electronic Frontier Foundation, I even screened the remix for the US Copyright Office at the 2012 hearings on exemptions to the DMCA. Afterward my Buffy vs Edward remix was mentioned by name in the official recommendations by the US Copyright Office (pdf) on exemptions to the DMCA as an example of a transformative noncommercial video work.
“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.”
-Recommendation of the Register of Copyrights, October 2012 (Page 133)
Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube’s system and filed a DMCA takedown and had my remix deleted for “copyright infringement”. Below is a brief chronicle of my struggle to get Buffy vs Edward back on YouTube where it belongs.
On October 9th 2012 I received a message from YouTube stating that Buffy vs Edward had “matched third party content” owned or licensed by Lionsgate and “ads may appear next to it”. Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.
I always turn all ads off on my remix videos and never profit off them. But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires. Incidentally this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones becuase they are not “monetized platforms“.
I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.
Less then 24 hours later however I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive popup ads.
Concerned at what appeared to be a blatant disregard for fair use previsions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1000 word legal argument citing case law and explaining how Buffy vs Edward was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount used and market effect. YouTube’s built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)
On November 26th 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!
Or so I thought.
That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had “matched third party content” owned or licensed by Lionsgate and that ads may appear on my video. Wait what? Deja-vu. Hadn’t I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for “visual content” owned by Lionsgate and the claim I had just fought and finally won had been for “audiovisual” content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.
It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media. Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.
Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.
So again I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which again lay out very clearly all the fair use arguments. And again, I waited for a response.
On December 18th I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.
I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.
In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but still insulting because my video was not infringing in the first place.
Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.
I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.
Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.
“The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.”
No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via email, despite fair use being raised multiple times. Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational and/or transformative works only if they can retain effective ownership and directly profit off them.
It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?
There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, the case of the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.
Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.
Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate, and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.
This is what a broken copyright enforcement system looks like.
One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit two lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.
PS: Until we can get the takedown reversed, you can still watch the HTML5 popup video version of Buffy vs Edward here.
PRESS:
- Forbes – Copyright In The Twilight Zone: The Strange Case Of Buffy vs Edward
- Ars Technica – Buffy vs Edward remix back online, but no fallout for Lionsgate
- Boing Boing – Lionsgate commits copyfraud, has classic Buffy vs Edward censored
- The Mary Sue – Buffy vs Edward Fan Mashup Wins Copyright Struggle
- The Daily Dot – Buffy vs Edward Back on YouTube After 3-month Legal Battle
- Blastr – How Buffy kept slaying Edward despite a Lionsgate copyright lawsuit
- EFF – Copyright Vampires Attempt to Suck the Lifeblood Out of Fair Use Video
37 Comments
Thank you for fighting the good fight!
What a cynical cash grab. They could honestly care less about fair use, just about how much money they can make off YouTube.
Every time someone stands up to this kind of behaviour, it makes them less likely to do so in the future. Every time someone knuckles under to this kind of behaviour, it makes it easier for them to do this in the future. I’m rooting for you.
What a disgusting display on the part of Lionsgate! I can’t believe that they came out and actually said that they blackballed you because you wouldn’t let them profit off of your work.
Actually, I can believe it – but it makes me sad.
Good on you, and thank you, for fighting this absurdity. I wish you the best.
You are amazing for going through all that. I am one of its 3 million viewers, & I applaud you for your insight and gender critique. I recommended it on social media & sent links of it to my friends. I am saddened by Lionsgate’s actions, & encouraged by New Media Rights’ assistance. I wish you luck with the continued battle, & thank you for taking a stand & making the video in the first place.
I hope your claim is correctly dropped by Lionsgate.
God, you don’t see Whedon or Fox claiming rights on it – and arguably, more footage and sound was used from that than Lionsgate films.
Can you put the donation link at the very top? This will help people support you. Thank you for standing up for this.
Wow. I remember watching your remix shortly after it came out. You did an amazing remix, and also gave credit where due to the original source material. If your video, with it being the most blatant example of fair use I can think of, can be taken down like this, it really REALLY doesn’t bode well for other creators out there utilizing fair use laws. It seems to me that as soon as something under fair use gain in popularity, the large corporations with lay claim to it. I don’t know how much YouTube’s policies come into play here, but I’ve heard that they err on the side of the larger corporations when it comes to copyright infringement and taking videos down. I am glad to hear that YouTube has an appeals process, but I’m saddened how your carefully constructed fair use arguments are simply ignored. Good luck it your current appeal. I would hate to see you get sued and have to pour more money into this when you’re so obviously in the right. I also hope this story gets more publicity to inform others.
Don’t use youtube.
Problem solved.
is it possible to get the video without the pop-ups available? I use the video in a course I teach and find them very distracting.
Rachel – Here is a direct link to the webM version of the original remix.
I wanted to donate but the minimum donation of 25$ seamd a bit high and way to many fields to fill made it a bit to anoying.
Hope they get a better donation system.
This sucks and youtube needs to be taken to task for stuff like this. I could see when they were first getting popular, but they aren’t exactly a small company anymore that has no defense when lawers get involved, being owned by google and all.
I’ve been blogging recently about a company which is trying to publish a line of role-playing books that are very, very close to another company’s line (White Wolf Games, who publish the Vampire: the Requiem games among others). The other company is using a lot of concepts, publishing model, and even graphical style but they refuse to admit any of it. Other issues such as the use of unlicensed graphics exist as well, but those aren’t what I’m asking about because they’re pretty clear cut (at least for a product people pay money for). My understanding is publishing this material isn’t copyright infringement (aside from including the unlicensed graphics), but would probably fall under an academic definition of plagiarism.
On the flip side, there apparently was a group which tried to reprint White Wolf’s game books free of charge. They inserted their own material into the books, but used the covers, boilerplate, some of the art, and the game’s terminology. They then called it transformative and claimed fair use.
So coming from the side of doing remixes in an audiovisual medium – and acknowledging the obvious differences between that and print – what is your take on this sort of thing – legally, ethically, personally, artistically? Is this something that should be fair game, or is there a line one doesn’t cross in terms of, for example, fan fiction or fan created works?
Why wasn’t the DMCA counter-claim the first thing you filed?
While I’m not 100% sure, here’s my best guess: Filing a DCMA counter claim is a lot more arduous than going through the YouTube appeals process. And it leaves them open to be counter sued and dragged into a lengthy and expensive copyright battle. They knew they were in the right, and thought it was a simple mistake, so they used the YouTube claims process. It was only when all those attempts failed and Lionsgate ignored their fair use evidence that they were left with two choices: give up or file a DMCA.
Honored your request and made a donation to New Media Rights. Wish I could do more. Thank you for making the effort and standing up for all of us!
You’re making money off of other people’s content. I’m not surprised they wouldn’t want you to do that.
except they weren’t. Lionsgate is the one who wanted to monetize that video after they didn’t do it themselves.
“Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.”
Where is the donate link on this page? I’m holding my credit card.
You can donate to New Media Rights via this link here.
Why do you keep playing their game? youtube has became an advertisement monopoly, and of course that they’ll answer to big studios lobbyists. I understand it is the best site to let people know your work, but it also may be time to follow alternative media.
What a long and exhausting process this must be! Thank you for sharing your experience and kudos to New Media Rights for the work they are doing! Keep up the fight!
Good on ya mate, keep it up! Props to your legal counsel too
Wow. I dont even know what to say, just wow. This has left me speechless. How can this system be considered anything but broken beyond repair? Start over USA, start over.
Thank you, Jonathan! The YouTube content ID system and its potential for abuse by large media companies is truly infuriating. You’re helping us all by creating a spectacle of how broken it is. Your airtight claim to fair use and your eloquence in presenting the case are just the kind of things we need in order to realize change. Really great editing on the video too!
Wow, something is definately broken. Hopefully, it will be fixed up soon.
I’m only leaving this comment because I want to follow this post, but I need to leave a comment for it to register it.
Jonathan, proud to be supporting both your creative efforts and the legal efforts of the EFF. Fair use will have its day!!
I hope they sue you.
Not because I think they’ll win, but because that will show them in a court of law that they are off their knockers. Them re-instating the video now is a win for you, but they will just keep on doing it to other videos. Losing in court gives us more power to prevent them from doing so again in the future.
That’s why Lionsgate released the claim. They likely realized that they’d spend a ton of money on lawyer’s fees and would still almost certainly lose. (See the 2LiveCrew Supreme Court and the appellate level The Wind Done Gone cases for why.) But it took pushback and showing the willingness to be sued to get there.
This was good to read…I had a similar experience but decided not to pursue after the first email. Mostly because it would have required I engage university lawyers and I didn’t have the energy. Which is exactly what they expect. Thanks for sticking with it AND sharing it with us.
Made a donation to your counsel and will be using this example in my classroom. Thanks for all your work.
By the way, YouTube is apparently upfront and unabashed about its goals: “YouTube is committed to helping copyright holders find and remove allegedly infringing content from our site.” [https://www.youtube.com/t/copyright_program]
All it takes is an allegation…
youtube should issue Lionsgate an “abuse of copyright” notice. This is blatant abuse of the copyright claim process to attempt to profit from the works of others.
UPDATE: Less than 48 hours after I published this blog post I received an email from The YouTube Team stating simply “The content has been reinstated.” Buffy vs Edward is now back on YouTube and can be viewed here. The copyright infringement “strike” also appears to be gone as my account is once again in good standing.
Can you sue Lionsgate for the time lost and the inconvenienced caused? Because after all the time dedicated and the ‘hassle’ (to say the least) of dealing with a bullying like behaviour might have caused you to degrade your living condition (at least temporarily).
Tam
Your mistake — if it can be called that — is in thinking of YouTube, Lionsgate, and MovieClips as organizations composed of humans with ethics and morals. I’m sure those people exist, but that’s not how the business gets done.
The only value that matters to the organizations is money. The humans involved can make reasonable arguments that they have a duty to pursue money over any socially redeeming value.
To guide their behavior, define your values in monetary terms. As the situation stands now, Lionsgate and MovieClips won.. they were able to monetize your work while the dispute was in effect, and it didn’t cost them anything to drop the claim when it became clear you were willing to force a lawsuit they’d lose. From their perspective, it was a moderately successful fishing expedition.
I’d guess that you have a legitimate claim to the money they got from ads placed against your work during the dispute, or at least could make a claim of fraud, pawning off, or something similar. You may not want to pursue those claims as a human with ethics and morals, but at least talk to your legal representatives and explore the effects you can have on YouTube’s, Lionsgate’s, and MovieClips’s financial gain/loss calculations.
When the country acquires a body of case law that gives victims of frivolous takedowns (like this one) a reliable claim to monetary damages, the chilling effect will move to companies that currently see decent returns from the ‘spray and pray’ strategy.
That might be worth pursuing.
Keep up the great work. Thank you for what you do.
Congrats on getting the vid back up! What a miserable hassle. I’m glad you fought back.