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.
January 09 2013
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losthero47 | January 09, 21:27 CET
[ edited by zoinkers on 2013-01-10 06:36 ]
zoinkers | January 09, 21:35 CET
Then Buffy Staked Edward, The End.
WhatsAStevedore | January 09, 21:39 CET
Heatherondo | January 09, 21:44 CET
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?"
Matt_Fabb | January 09, 21:59 CET
KingofCretins | January 09, 22:07 CET
@theonetruebix | January 09, 22:11 CET
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.
zz9 | January 09, 22:35 CET
cleveland | January 09, 23:54 CET
*And film companies have encouraged this by releasing clips for competitions for fans to make their own trailers etc.
Simon | January 10, 01:12 CET
Dana5140 | January 10, 04:11 CET
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.
zoinkers | January 10, 05:59 CET
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.
hann23 | January 10, 06:03 CET
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 ]
QingTing | January 10, 06:28 CET
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).
KingofCretins | January 10, 08:14 CET
gossi | January 10, 08:46 CET
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 | January 10, 08:57 CET
"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."
zz9 | January 10, 09:56 CET
KingofCretins | January 10, 10:04 CET
[ edited by zoinkers on 2013-01-10 20:00 ]
zoinkers | January 10, 10:59 CET
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.
Dana5140 | January 10, 11:47 CET
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.
TimeTravellingBunny | January 10, 11:52 CET
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 ]
KingofCretins | January 10, 11:56 CET
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 | January 10, 14:20 CET
Dana5140 | January 10, 15:06 CET
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 | January 10, 15:49 CET
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.)
zz9 | January 10, 16:01 CET
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 | January 10, 16:32 CET
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 ]
Dana5140 | January 10, 16:37 CET
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 ]
KingofCretins | January 10, 17:13 CET
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.
zoinkers | January 10, 17:35 CET
zz9 | January 10, 19:16 CET
zoinkers | January 10, 19:25 CET
Just saying. :-)
Dana5140 | January 11, 04:35 CET
KingofCretins | January 11, 06:35 CET
Sunfire | January 11, 08:22 CET
zoinkers | January 11, 10:26 CET
KingofCretins | January 11, 11:41 CET
Dana5140 | January 11, 12:21 CET
KingofCretins | January 11, 13:43 CET
@theonetruebix | January 11, 13:49 CET
KingofCretins | January 11, 13:53 CET
zoinkers | January 11, 15:08 CET