Lionsgate Entertainment Abuses Copyright Law by Removing "Buffy vs Edward" from YouTube
*** UPDATE: The remix was reinstated on January 10th, following significant negative media attention directed towards Lionsgate as a result of the spread of Jonathan's story (posted 48 hours before).***
More than three years ago, American remixer extaordinaire, Jonathan McIntosh uploaded âBuffy vs Edward: Twilight Remixedâ to his YouTube channel. The remix went on to be hugely successful, spreading virally to over 3 million views, featuring widely in online media and even winding up as part of academic curricula around the world. But perhaps its crowning achievement was being screened at the official DMCA exemptions hearings held by the US Copyright Office in summer 2012 and being noted as a clear-cut example of fair use (specifically, an example of âtransformative non-commercial video workâ) by experts in the field.
However, the legal eagles at Lionsgate have recently had the video removed from YouTube, because, they claim, it infringes on the copyrights Lionsgate holds that protect the Twilight movies (from which McIntosh sampled 1 minute and 48 seconds of footage). Having personally been through the YouTube counter-notice appeals process myself (dealing with copyright infringement notices from the BBC, Paramount Pictures and 20th Century Fox for video remixes I made, albeit prior to the introduction of YouTubeâs monetisation strategy), I was relatively familiar with the process, but was fascinated to read Jonathanâs in-depth blow-by-blow account of Lionsgateâs absolute abuse of copyright law in relation to uploaded videos on YouTube.
In summary, McIntosh first received a notice in October on his YouTube channel claiming that some or all of his video âmatched third party contentâ. I teach web media and most of my students upload their work to YouTube channels â in recent months, Iâve noticed a worrying increase in the number of âmatched third party contentâ notices that have been applied to my studentsâ channels. In most cases, itâs because they have included a small sample of a song to enhance an animation or video theyâve been working on and for this they do not get penalised, but rather, like in Jonathanâs case, YouTube places ads beside or overlaid on top of the videos and the revenues go to the copyright holders when people click them (presumably).
Naturally enough, Jonathan didnât want ads for âNordstromâs fall fashionâ line appearing over his video (which critiques gender stereotypes in popular culture) and in addition, such a third party content match stops the video from playing on mobile devices, a huge loss of potential viewers (20% of YouTube views come from mobile devices). Jonathan filed a dispute claim on grounds that the remix video was an example of fair use (using YouTubeâs automatic counter-claim facility) but received a rejection of the dispute from Lionsgate within 24 hours. At this point, Jonathan sought legal advice and then submitted an appeal to the reinstatement of Lionsgateâs claim of copyright infringement, again using YouTubeâs automated process (this second round of appeals did not exist when I went through the process in 2008), accompanied by a 1,000 word detailed legal argument outlining how and why Buffy vs Edward is an example of Fair Use.
A month later, YouTube sent a message on behalf of Lionsgate stating that they had withdrawn their copyright infringement claim. But later that day, they launched a fresh copyright claim on the video. According to YouTube, Lionsgateâs first claim was for infringement of âaudiovisual content administered by Lionsgateâ (the claim that was released), however the second claim was (confusingly) for infringement of âvisual content administered by Lionsgateâ. Patiently, Jonathan went through the process again. He filed a fair use dispute counter-claim (which was again rejected by Lionsgate within 24 hours) and then filed an appeal against the reinstated claim using the same 1,000 word legal argument and waited for a response. Lionsgate obliged with an early Christmas present for McIntosh on 18th December, this time rejecting the appeal and having the video permanently deleted from YouTube. Well played Lionsgate! If at first, you donât succeedâŚ
To make things worse, Jonathan was now locked out of his YouTube account, had a copyright infringement strike placed on his channel and was (rather hilariously) forced to attend YouTubeâs copyright school and take a pop-quiz on fair use before he could access his account again. You couldnât make it up. If thereâs anyone who knows more about fair use than Jonathan McIntosh, I havenât met him. Rightly worried and concerned, Jonathan had his lawyers contact the relevant people at Lionsgate who filed the copyright claims and discovered something deeply disturbing (which is why I felt compelled to write and share this as widely as possible). Lionsgateâs representative on this, Matty Van Schoor from a company called âMovieClipsâ (that manages Lionsgateâs clips on YouTube), stated that if Jonathan had agreed to allow ads to appear with the video, they would have left it online, but because he disputed and appealed this, they were âleft with no other option than to remove the contentâ.
This is a very worrying development for anyone who makes use of the Fair Use provision in U.S. copyright law, especially remixers like Jonathan and others like him. In this case, instead of respecting a clear-cut example of Fair Use, Lionsgate and YouTube have effectively ignored the Fair Use provision, instead suggesting that copyright holders should have total control to âallowâ people to remix their content, as long as they can profit from it (and remove videos if they choose). The problem here is that in cases of fair use, permission does not have to be sought from copyright holders. Of course, fair use is not a right, it is merely a legally defensible position, and it is a difficult task to determine whether a specific example is fair use or not. However, in this case, this argument does not apply, as this particular video was quite clearly cited as an example of fair use by the U.S. Copyright office, no less!
Following further advice from his lawyers, Jonathan filed an official DMCA Counter-Notification against Lionsgate, which gives them 14 days to reinstate the video, or else sue Jonathan for copyright infringement. Letâs hope they choose to reinstate it, but from what we have seen and heard so far, Iâm not so sure they will. Thanks to Jonathan for sharing his story and now, for your viewing pleasure, may I present âBuffy vs Edward: Twilight RemixedââŚ(reuploaded elsewhere on YouTube by a fan!)
http://www.youtube.com/watch?v=O2fdIXGgdnw
Or you can download an MP4 of the video from here:Â www.rebelliouspixels.com