Model Fair Use Video Removed from YouTube for Copyright Infringement

Friday, January 11, 2013, by Jonathan Ambrose

In a blog posted on Wednesday, January 9th, Jonathan McIntosh recounts his recent struggle to get his mash-up video “Buffy vs Edward: Twilight Remixed” back on YouTube after an invalid DCMA takedown was filed.

The video, which depicts what might have happened if Edward Cullen had directed his affections towards Buffy the vampire slayer instead of Bella, uses slightly less than two minutes of audio and visual content from first Twilight movie, which was recently acquired by Lionsgate.

The video has been cited as an example of fair use as a transformative, noncommercial video work.  It is intended to emphasize the “creepy and stalkerish” behavior of Edward, which is portrayed romantically in the books and films, by considering how a stronger female character like Buffy might react to those attentions. McIntosh screened the video at the 2012 hearings on DCMA exceptions, and the video was specifically mentioned as an example of a fair use exception in the Official recommendations of the US copyright office. The document states that reductions in quality might impair the videos critical purpose:

“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)

When Lionsgate originally implicated the video as copyrighted content, YouTube allowed the video to remain viewable on monetized platforms, with the addition of advertisements. After a series of appeals by McIntosh, the video was completely removed and McIntosh was blocked from accessing his account until he completed an online tutorial and quiz on copyright and fair use.  Shortly after McIntosh’s blog was posted Lionsgate dropped its copyright claim without explanation and YouTube reinstated the video.

While McIntosh’s experience, after a long struggle, ended happily, Lionsgate’s actions have negative implications for other fair uses of copyrighted materials. Many, perhaps most, of the creators who use this content are likely to be less tenacious than McIntosh in defending their creations. Thus, the owners of the original content might monetize or remove fair use creations by strategically using DCMA takedowns and YouTube content IDs, even where those creations clearly do not violate copyright law.

A submission made by Google to the Telecommunications Carriers Forum in 2009 indicates that DCMA takedowns have been routinely used for these strategic purposes. In it, Google claimed that more than half of the DCMA takedown notices it had received were sent by businesses targeting competitors, and that over one third were clearly invalid. Many YouTube content creators are unlikely to have the resources or time to these invalid claims, thus allowing the larger entities that own the original works to unfairly profit off of their use, or remove them completely.