YouTubing the Internet Stream

by Ronald H. Reynolds

This blog was originally published on July 23, 2013, and some of the information contained may no longer be current.

Has volume changed the controls over copyright infringement?

My old partner started practicing law in 1947.  His phone number was 4718.  We expect change, but not an exponential explosion!

YouTube, after only 7 years of life, has over 1 billion visitors each month.  Remember, a billion exceeds three times the population of the United States.  (3xUS population + 55 million)  More surprising is the 50% increase in usage from last year.  Over 6 billion YouTube hours are watched each month, and 1/4th of that is on mobiles.

Has this Google/YouTube, Yahoo/Tumblr, and Facebook/Twitter tsunami stripped artists of their rights?  Did they grant their users a license to steal by allowing the infringing videos?  No; typically, the copyright holders either cannot keep up with the volume of infringing content, choose to turn a blind eye, or embrace altogether the opportunity to monetize the infringement or take advantage of free promotion.

As the world is flooded with content, our clients have had the opportunity to ride the wave or be lost in the undertow.  Consider for example consider one artist we represent who appears to have their copyrighted music used in over 700,000 separate videos on YouTube, 99% of which were posted by others, without permission.  They include filmed concerts, parodies, their music as background, entire albums with a copyrighted album picture, and covers (singing or playing another’s song is a cover).  Covers compromise most third party use of the band’s creative product.

Why aren’t my uploaded videos safe from copyright infringement?  (What doesn’t work?)

Even some of the smartest YouTube users infringe copyright protected work.  Many fans post videos and state “no copyright intended.”  That disclaimer, however, does not get them off the hook (nor have any legal bearing whatsoever, actually).  Some add to this phrase something like “I just purchased this album and love it.”  A purchase of the content from iTunes or another store does not come with on-line posting rights.  In reality, unauthorized use of a song in an online video is no less an infringement than burning a CD for thousands of friends.  How about “I just recorded this video myself?”  If you record an event or show but you don’t, as a result, automatically own the audio content you capture, even though it was open to the public.  And giving credit to the copyright owner and not making money off the video is not a “get-out-of-jail-free” card, either.

Then there is the poor defense of “I noticed 10,000 others with similar posts.”  That argument works as well as the lawbreaker telling the highway patrol “everybody else was speeding.”

When a person creates an original work that is fixed in a tangible medium, like a CD or even on a computer hard drive or website, he/she automatically owns the copyright with exclusive rights.  That’s why everything you see on the internet is covered by copyright law.

How can I upload videos without copyright problems?

 All the disclaimers in the world (e.g., “I filmed it,” “I purchased the CD,” “no copyright infringement intended,” “this is the work of xxxx Band”) will not take away that exclusive right from the artist.  Only three defenses work:

1.  If you are the original creator (in either sense of the word) of all of the content, and not just the film that features the song you may or may not have written.

2.  If it is “fair use” of the copyrighted content – a legal defense to infringement and a commonly misunderstood and misapplied doctrine on YouTube.  Some examples of fair use include news reporting, commentary, teaching, scholarship and research, parody and other transformative uses, all of which are not automatically permissible uses but are subject to a balancing scrutiny based on four “fair use factors” (one of which is whether your use is “transformative”).  Click here for more a more detailed discussion of the fair use doctrine.   “Transformative” in the legal sense has its own threshold and does not mean “a little different”.  For example, most song (and video) remixes are actually copyright infringements (though largely tolerated by rights holders because of their positive impact on the underlying song).  Because a remix typically incorporates too much of the original content, it remains a “derivative” work (and derivative works belong exclusively to the original copyright holder).

3.  If you have permission

How do artists or their record labels handle videos being uploaded with their content?

YouTube scans all uploaded videos and compares them to their database of music and videos supplied to them, mainly by entertainment companies.  This service is called “ContentID.”  Use of copyrighted material is flagged for the copyright holder, who can dictate one of the following courses of action for all content:

1.  Automatically mute infringing videos

2.  Automatically block infringing videos

3.  Automatically monetize infringing videos by allowing advertisers to place skipable and non-skipable ads (through a service called TrueView in-stream)

The content owner can change their option at any time, or choose to do nothing with the matched content.  In addition to the prearranged ContentID decisions, there is an individual takedown process.  A copyright holder who notices infringing content not automatically flagged can send a removal request to YouTube.

Some artists (or labels in the case of signed artists), have determined it is beneficial for fans or internet users to post videos with their recorded music and/or post live videos of the artist’s shows.  Others mute or block content to keep control of all their material (one of the more famous examples being Prince, who vigorously prevents and removes filming of his live shows).  Reasons range from managing public image to pure monetary concerns, but perhaps these reasons discount the benefits of fan use, promotion, and ad revenue.

What happens when a user’s uploaded video has been blocked?

Once a user’s video has been blocked by a copyright holder, either automatically or individually, it remains blocked until a counter-notification is submitted.  If the video poster submits a counter-notification, the video will be reinstated within 10 days unless evidence of a court filing is provided.  Removals are called “strikes.”  One strike and the video doesn’t function, three strikes and you are out of YouTube.  Your account is suspended, all your uploaded videos are deleted, and YouTube (attempts to) permanently block that user from creating new accounts.

Deleting an infringing video does not remove a strike.  If your video has been removed from YouTube or your website, the strike can be removed by 6 months of no further violations and taking an approximate 4 minute quiz at YouTube’s own traffic school.  The quiz is simple and if you give the wrong answers, you get another set of questions until you get it right.

To block or not to block?

The final piece of the puzzle for the artist is the cost of the decisions.  For ads on your own video, Gangnam style is a good example of ad value.  The video garnered about 8 million dollars from YouTube ads last year, and the numbers have continued to mount to 1.7 billion views to date.  Sure, Psy splits this with his label/publisher/manager/etc. after they split with YouTube.  But 1/4 of $8 million beats 1/4 of bupkis.

But Psy was using his own music in his video.  How much money do you make from allowing others to use your copyrighted music with their video?  The ad revue is somewhat less than the (roughly) estimated $1 per 1,000 views – consider the example of the “Harlem Shake” phenomenon.  Here, the song owners automatically and manually matched their content to over 4,000 user-generated videos (mostly consisting of mindless dancing to the music).  Those 3rd party videos generated well in excess of 30 million views, making the song owners a pretty penny on top of whatever iTunes and other digital sales were generated as a result of the publicity.  Would they have been better served by blocking the creative use of their music?

In conclusion, this blog article is only the lightest brush-stroke on YouTube and copyrighted works, which could include videos, TV shows, movies, music, written works, software, printings, posters, ads, plays and musicals.  Facts, ideas and processes are not subject to copyright, neither are names or titles by themselves.    There are, however, other means of protecting intellectual property.  State and federal trademark, trade name, registration and privacy complaints, will be addressed for another day.

News Footnote:

After more than 6 years and hundreds of millions of dollars in attorney’s fees, Viacom’s billion dollar lawsuit against YouTube for hosting videos like Sponge Bob Square Pants and MTV videos has been rejected by the Federal Court.  Until there is a higher decision, YouTube is safe in its policy of removing content when notified of possible violations.  This is a “safe harbor” protection provided by the Digital Millennium Copyright Act of 1998.  As a cautionary note, this protects those who do not “have knowledge or awareness of specific infringing activity.”

This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney.  This Blog does not create an attorney-client relationship with any reader of this Blog. This Blog contains no warranties or representations that the information contained herein is true or accurate in all respects or that it is the most current or complete information on the subject matter covered.

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