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January 10 2013

Buffy vs Edward creator's fair use dispute with Lionsgate. Jonathan McIntosh writes about his ongoing dispute with Lionsgate, who recently filed DMCA complaints against his work.

Buffy vs Edward was taken down by YouTube's Content ID System due to copyright claims by Lionsgate, who became the owner of the Twilight franchise in 2012. At first they used the DMCA process to monetize the video, and when McIntosh disputed the claim, the video was removed entirely and a copyright strike was placed on his account. McIntosh - a regular lecturer on the doctrine of fair use - was then forced to attend YouTube's "copyright school" in order to regain access to the account and place a counter-notification on the video, which is still pending.

That video is great, but this is understandable.
An interesting wrinkle here - which is entirely sidestepping the fair use question for the moment - if you think Lionsgate is on legitimate grounds with their DMCA notice, do they have the right to monetize a video that contains copyrighted material owned by Fox?

[ edited by zoinkers on 2013-01-10 06:36 ]
That's too bad. I wish the video creator could have flipped the images... although I don't know if that protects against copyright infringement claims. I do love that video.

Then Buffy Staked Edward, The End.
Some people just have no sense of humor. Tomorrow while running errands, i will wear the t-shirt i got from redubble with great pride, comic buffy saying "Oh man, they sparkle now??"
Wow... this clearly falls under the fair use and it's really too bad that there are not more protections for fair use under YouTube's system. Unfortunately, I can understand that YouTube need to bend over backyards to make sure they aren't breaking any laws, but people should be able to submit a video perhaps for review to make the claim that it is fair use.

I could see this going to court via the Electronic Frontier Foundation but wonder if Liongate would allow it to go that far or if they would settle.

I think this link from the article I think does the best to sum it up:
"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?"
Looks like the 2 Live Crew case to me, hell -- it's even better because there's no commercial purpose in the usage. If commercial parody can be fair use, certainly non-commercial parody can be.
Part of the problem is MediaClips, owned by ZEFR. This is not the first time content has been flagged by them -- and they are used heavily by the industry -- when it should not have been.
Firstly, this is the first time I have ever seen any Twilight footage and bloody hell it's painful. Is Edward like that all the time?
Secondly, comparisons with the Daily Show are misleading since a thirty minute Daily Show might have a two minute clip from a third party, this is 100% other people's stuff. I kinda side with Lionsgate here. Having watched it it looks like a mashup/edit with a thin veneer of 'commentary' on top to claim Fair Use. His opinion of Twilight may be spot on, and from what I've heard I suspect I'd agree, but this mashup doesn't in itself make the point very clear hence needing the captions to tell you what the point is. A video of him talking illustrated with a few short clips of BtVS or TW would have been more what I consider Fair Use commentary or criticism. (Makes a change that for once it isn't Fox being all takedowny.)

Some fan edits can be fantastic, the Firefly/Defying Gravity video for example, but it's still using other people's stuff.
A collage like this is in my opinion a new work of art and should be legal.
It's a whole grey area. There's people who want to comment on various things by manipulating clips* and then there's fans who make money from selling t-shirts etc. I've never been that fond of that latter.

*And film companies have encouraged this by releasing clips for competitions for fans to make their own trailers etc.
I am not so sure this actually meets the legal stipulations for fair use for criticism, as author notes. Simply defining somethng as "transformative storytelling" does not give you the right to use copyrighted material. Copyright owners have the right to control derivative works based on previously copyrighted material. The idea of using material under fair use for criticism is to be able to show some of it as part of writing the critique. Cleveland, the collage cannot be legal. since it is derivative work. This problem crops up in smapling music for hip hop groups, for example; some artists ask for and are granted the right to remove their music from a sampled track. I could go on at length, and I have seen and enjoyed this clip, but I will say here he will not win this case.
I think the work strongly qualifies as fair use because 1. it is non-profit, 2. it does not affect the market of the copyrighted work, and 3. its entire purpose is social commentary and criticism. It shows the Twilight clips in a critical light by contrasting Bella's (absent) reaction with Buffy's, thus transforming Edward's behavior from romantic to socially unacceptable and dangerous. In doing so, the author hopes to counteract what he clearly perceives as a harmful situation wherein impressionable teenage fans of Twilight are influenced into believing that stalking and other abusive behavior is normal and desirable. I think the message of the work would only be diluted by adding wholly original content such as video of the author commenting on the clips, and as the work is intended to comment directly on Twilight and its likely effect on society, replacing the footage entirely with original content (such as a spoof with different actors playing the Buffy and Edward parts) would be similarly counterproductive.

In a broader context, I believe the purpose of the fair use provisions of copyright law are to allow precisely this type of direct commentary to take place. It's part of a tradition that is as old as civilization itself, and the unreasonable demand that everything be "original" removes the ability of an artist to continue the cultural conversation. It is essential that we are allowed to create new permutations of familiar ideas, and any artificial prohibition against this does not serve to enrich our culture. All it does is concentrate power and influence in the hands of a few by silencing less privileged voices.
So, the gazillions of fan manips out there are illegal
too?

What about "How It Should Have Ended?" videos?

It all depends on who holds the copyright material that's being used.


I really like this one and have shared it many times. Did the creator make money directly from it?

I really don't understand any of this.
I haven't seen the video. It sounds like something that I think should be legal, which isn't to say that I think it is legal. Under current statutes, lack of monetization does not absolve one of copyright infringement, just as the presence of monetization does not alone prevent a work from falling under fair use.

Fair use has very specific (though not necessarily objective) applications. For example, in the criticism/commentary/parody exceptions, the secondary work must be criticizing/commenting on/parodying the primary work rather than something more indirect such as society.

[ edited by QingTing on 2013-01-10 15:32 ]
I'm with zoinkers. Certainly reading the statute, applying it as a TOTC as it should be, I would say that on the equities it is textbook fair use, certainly under the Campbell standard. I don't think anybody practicing would look at this guy and actually give him an advisory thumbs up to do it, but I do think he'd have a good chance if it was litigated.

To Dana's point, though, the reality is that he very well might lose because IP holders tend to get their way a whooooole lot in courts and legislatures.

Honestly, my only objection to the video is substantive -- "Buffy" as a franchise has actually waived any claim of superiority on some of the behaviors criticized in "Twilight"; a close examination can find many of the criticized behaviors in both of Buffy's vampire romances. "Buffy" raking "Twilight" is sort of like "Anita Blake" raking "Buffy" (going from "kills vampires, doesn't date them" to the other thing in the space of just a couple novels).
Re a point from earlier - was the creator making money out of it? (YouTube have a partner programme which pays). I can't remember if the videos had adverts.
According to the article, the initial dispute arose because Lionsgate wanted to put ads on the video, which previously had ads disabled by McIntosh.

It's also worth noting that the Copyright Office itself specifically sited Buffy vs Edward as an example of the need for noncommercial fair use videos to have the right to use high quality versions of the originals.

http://www.copyright.gov/1201/2012/Section_%201201_%20Rulemaking%20_2012_Recommendation.pdf

[ edited by zoinkers on 2013-01-10 18:12 ]
Zoinkers, that report also very clearly said it did not make any judgement as to whether any examples quoted were fair or not.

"On balance, the fair use analysis demonstrates that many of the uses in which
noncommercial video creators, documentary filmmakers, multimedia ebook authors, and
educational users seek to engage are likely to be fair. Importantly, the Register is not
making any judgment as to whether any particular use offered by the proponents is in fact
fair, and it is conceivable that some may not be.
"
Because Fair Use is ultimately what a court says it is. Advisory opinions on fair use are risky business. You can tell someone the statute, tell them it's a TOTC of the four prongs, can show them and even explain to them precedent, but it's still down to who wins on the specific facts and law argued that day.
True enough, but it's still a pretty strong endorsement. It would be embarrassing for the Copyright Office to cite a video that winds up not qualifying for fair use. If there were a significant doubt in their minds, they probably wouldn't have mentioned it.

[ edited by zoinkers on 2013-01-10 20:00 ]
That report also states that fair use cases need to be considered on a case by case basis.

So, here is the specific language in law:

"Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Germane points:

Wikipedia: The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.[20] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement.

Since the defendant has the burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law. (See Strategic lawsuit against public participation).

Fair use interpretations are unique and limited. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.

Myth- Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of LA Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.

Thus, in the case of this thread, having been sued, the burden falls on him to prove the case, which is not guaranteed and may be burdensome. I am not sure I would deem this transformative myself, and I like what he did.
@KingsofCretins: You don't need any close examination; if memory serves, the video was made out of various clips of Buffy talking to/about Spike or Angel, and I believe there was also some Riley and perhaps Parker in the mix (yes, King, I'm afraid that creepy or jerktastic behavior of Buffy's boyfriends isn't limited to those of the undead variety). It was very cleverly done, but it might have made a bit of a false impression for those who haven't seen BtVS, by not mentioning the fact that all of Buffy's pointy barbs were aimed at guys that she was sleeping with, had slept with, or was eventually going to sleep with.

However, BtVS is still hugely superior to Twilight in its treatment of the subject, and the video does show that: at least Buffy, the character and the show, was aware when the male love interests were being creepy*, while Twilight seems to present Edward as a straightforward ideal boyfriend.

*Except when it came to Riley, sadly.
Nature and purpose, the transformation prong, is the trickiest by far. Personally, I'd find "Buffy v. Edward" closer in transformative character to the facts in Campbell than the facts in, for instance, the Harry Potter encyclopedia case. But it's a four prong, totality test. Any ground you lose here you can make up some there.

This video actually poses an interesting thought exercises in copyright/fair use law -- the possibility that the use may be fair as to one IP holder and not another. Here, I think as relates to Lionsgate, the use is directly in line with Campbell -- the use is explicitly to hold Edward, and "Twilight" up to parodic ridicule. But it's much, much more tenuous to argue the transformative value as to 20th's interest. But Lionsgate can't, or shouldn't be able to, argue what's fair vis a vis "Buffy", they don't have standing. I don't personally think Lionsgate could win without begging 20th to sue the guy for infringement.

EDIT: Time, no, not all, just a sweeping and prohibitive majority. I thought specifically of it when the video gets on Edward's case for revealing fantasy of violence against Bella/Buffy. Who the heck is Buffy, or "Buffy", to ridicule that in romance, particularly of the undead variety?

[ edited by KingofCretins on 2013-01-10 20:57 ]
He hasn't been sued yet. So far, I've only been stating my opinion that the video should be considered fair use. The courts may decide differently, but I think the law as it stands already gives far too much power to large media companies.

The Copyright Office, understandably, would hesitate to give the video its unequivocal support as fair use - such a definition being outside its legal power. However, merely mentioning it in the context of fair use suggests they might think it's a strong candidate for consideration.

There's a world of difference between legal right and moral right. These companies, with the nearly endless resources at their disposal, have rigged the legal game in their favor in an increasingly desperate attempt to hold onto old models of distribution. I'm no lawyer, and I can only speak to what I personally think is right and wrong. Copyright law to me seems deeply morally wrong in its current form - and this is coming from someone who makes it a point to purchase media from artists whose work I support.
Zoinkers, I am far more nuanced on this issue. I spent 23 years as a medical editor; I have written textbooks, DVDs and well over 100 scientific papers, and I have a record/CD collection of well over 5000 discs, all of which I bought, none illegally downloaded. I do not argue with you re: moral v. legal rights, but the truth is that copyright in solely a legal issue, so far as society is concerned. It is granted by the government for certain purposes. Having said that, it is well known that it is abused by copyright owners, witness Micky Mouse, for example. There is a bit of text in the law that says that if there is any question, always seek permission first. That did not happen here, and it is not transformative simply because the author argues it is. A court will need to decide. Without law and without the courts, protection does not exist; therein lies a double-edged swoard, to be sure.
Good for you. I haven't disagreed with you on any legal point here, so there's no need to list your impressive credentials to support a point that isn't under dispute. However, no amount of claimed experience is going to convince me that a legal issue lacking a moral foundation is going to be anything but superfluous at best and corrupt at worst. The way I see it (given my admittedly unimpressive cv), any law that has an ultimately harmful effect on society needs to be changed, and I intend to vote and speak accordingly.

To be absolutely clear, I am not arguing for the abolishment of copyright law as a whole, but rather its modification. As I said, I'm no lawyer, so I can't speak to details. I'm just talking about the situation as I see it. The end result. The law is not perfect (it never is, or it wouldn't allow for its own modification) and it needs to be changed.

So can you explain to me exactly how we disagree?

[ edited by zoinkers on 2013-01-11 00:49 ]
Zoinkers, your comment that media companies have "with the nearly endless resources at their disposal, have rigged the legal game in their favor in an increasingly desperate attempt to hold onto old models of distribution ignores the fact that these companies, in cases such as this, were the ones who spent many millions of dollars creating the IP in the first place. These very same laws can and often are used by the lone writer to defend his IP against the large corporation. The old media dinosaur is dying and the sooner they adapt and change the better, but doing away with IP rights is not the way.

I remember in the days of BtVS on TV seeing a fansite have galleries of screen caps from every episode, hundreds per ep, on their site and then have a "Warning. I made these screen caps. Do NOT use them on any other website without MY permission!" notice at the bottom. The sheer entitlement attitude of this when all he did was steal something that Joss and Fox spend millions of dollars making yet he then considered that he now has the right to demand that no one steal from him...
(Not suggesting the guy in this case is claiming anything like this.)
I think you're mistaking me as someone who suggests that these content creators and investors should have no rights. I too have a large collection of albums and movies which I purchased legitimately (although not quite as large as yours). I fully understand and support the fact that these productions are extremely expensive and the result of the hard work of hundreds of people, and I try to make it a point not merely to legally view the films I support but to actually see them in the theater. Rather, I'm suggesting that the rights of Lionsgate were not infringed here in any measurably harmful way, and certainly not to the extent that justifies silencing McIntosh's speech. If anything (speaking only for myself) my interest in seeing Twilight has actually increased after watching this video, if only to see if Edward's behavior is really as creepy as it comes across. No amount of legitimate advertisement had nearly as much effect on me; quite the opposite.

I do take issue with the assertion that the law provides the individual creator without financial resources the same protection as the large corporation. This may be theoretically true, but in practice it rarely seems to be the case.
zoinkers, I was intrigued by the moral v. legal issue you brought up; that's why I noted my creds, since I have at least a personal interest as well as some legal knowledge on the issue, since I was responsible for controlling copyright at the last institution I worked. This issue is raging, to be sure. I also spend time on another board, called progressiveears.com, dedicated to prog music, and this issue comes up all the time with regard to downloading music, and about torrents, and the idea that so many people have no problem at all taking others' work without pay. They have all sorts of arguments about the morality of this. AS I see it, the copyright owner, under law, gets to control the use of his or her copyrighted material. Fair use allows some limited use for specific purposes. No one would be happier than I if this piece here was found to be transformative, but I sincerely think it will not meet the test. Because we love Buffy does not mean we get to use Joss (or someone else's) material out of that love, arguing that we are simply transforming it and ergo it is fair use. We don't get to make the call.

ETA: Man, you DO NOT want to see Twilight. It is the anti-Buffy, and it stinks to high heaven, and I am being nice in my comments here!!!!!

[ edited by Dana5140 on 2013-01-11 01:39 ]
For about 15 shining, glorious minutes, "Twilight" was actually kinda awesome as a film franchise. But, alas, it is irrelevant. If you know what I'm talking about, you know what I'm talking bout.

Dana, I'm not really sure why you don't think -- again, as to a claim by Lionsgate, who has no standing vis a vis the use of "Buffy" or "Harry Potter" footage -- it wouldn't satisfy the Campbell application of the statute. If holding it up for parodic satire is a known waypoint for "nature and purpose", and in the totality of the other elements, I think the affirmative defense is likely to prevail.

I'm being lazy, but I don't know of any case that makes "fair use" either a complete defense against any plaintiff or a defense against none of them, but on speculation, I'm assuming it's on a plaintiff by plaintiff basis even for a single accused work. In that context, there would be three theoretical plaintiffs here -- Lionsgate, Warner Bros, and 20th.

My own guess would be Lionsgate loses because of the parody rule. Warner loses because the infringing use is so negligible (it's just that single, <1 second shot from "Goblet of Fire", right?). 20th overcomes the fair use defense, though. There is nothing transformative about the "Buffy" side of it, infact, the entire point seems to be to take the Buffy character and purpose exactly as used by the IP holder and run with it.

EDIT: Zoinkers, I know you're not talking in technical terms and just about general equity/policy beliefs, but it's worth pointing out that McIntosh doesn't have a free speech interest here (you put it in mind by mentioning an infringement action as silencing his speech). In the US -- and actually anywhere I can think of that has a freedom of speech protection -- the protection is one citizens enjoy against action by the government. Lionsgate silencing an infringement isn't a violation of free speech, it's protection of a legitimate commercial interest of their own. Although, again, I personally don't think they would win.

[ edited by KingofCretins on 2013-01-11 02:17 ]
Whoops, looks like I got my replies mixed up.

The only things I can add from a legal perspective regarding copyright law would take the conversation off-topic, so I guess I'll just stick to my admittedly muddy moral opinions. It's just, like, not right, y'know? Think of the children!

But for the record, I don't advocate piracy. The non-commercial infringement penalties are outsized, but ... off-topic.

So ... what a fascinating discussion! I guess I'll just sit back and listen now.
Not going to watch Twilight then...? :)
Welll ... it's not high on my list of things to do. I was just saying that my interest increased from zero, which was surprising.
Zoinkers, please, I bet you, don't do it. Bella has no agency whatsoever and defines herself totally in relation to her man, who she would literally die for just to sleep with him... I could go on, but this is a text I loath so much it beggars description.

Just saying. :-)
The total running time of the film franchise is 609 minutes. There are the sterling 15 or so minutes in "BD 2" that are epic if somewhat irrelevant, and I'm not sure I could squeeze an hour or an hour of a half out of the rest that are more than mildly amusing.
So what do you all think? Is the depiction of Edward as a creepy stalker fair, or exaggerated? I know Buffy isn't entirely above dating vampires who are occasionally abusive manipulative stalkers, but would she have rejected and/or killed him for his behavior?
I think it's mostly fair, but like a lot of snowballing criticism, he probably gets "stalker" beef for even otherwise innocent behavior. Or at least as innocent as behavior for a vampire would be.
Or criticized as many cultural and critical theorists might do...
Don't Blame Me, I'm Team Jacob -- should be a t-shirt.
Buffy and Edward beat Lionsgate and ZEFR.
Almost disappointed it's not going to be litigated, it would be useful guidance from the courts. Plus, I still tend to think he'd be vulnerable to similar action by 20th. But, hey, it's a fun video. Glad it's back on.
Thanks for the update, b!x! I wonder if this means Lionsgate decided not to sue, or that they just aren't pursuing it at this time.

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