Warner Bros. has drawn heat from the statement released about the leaked Suicide Squad footage, and it looks like the company is taking its desire to control how you see, and discuss, its trailer a step further.
Warner Bros. doesn't seem to want you to see the leaked footage from that trailer now that the higher quality version of the trailer has been released, and has sent a DMCA complaint to Google with a list of links that Warner is saying infringes on the company's copyrights.
These are the links that are considered to be infringing, according to Warner Bros.
We found this report when searching for our own story, oddly enough, although our coverage of the leaked trailer can still be found through a Google search as of this writing.
This isn't the end of the story, Warner Bros. is also claiming YouTube videos that discuss or show clips from its trailers.
Warner Bros. and fair use
Using clips from trailers and films during a discussion of that content is usually considered to be fair use, and is done frequently on YouTube.
"Video makers have the right to use as much of the original work as they need to in order to put it under some kind of scrutiny," the Center for Media and Social Impact stated in its guide to Fair Use. "Comment and critique are at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the maker analyzes, comments on, or responds to the work itself, the means may vary."
Here's the limitation:
The use should not be so extensive or pervasive that it ceases to function as critique and becomes, instead, a way of satisfying the audience's taste for the thing (or the kind of thing) that is being quoted. In other words, the new use should not become a market substitute for the work (or other works like it).
So if you're offering commentary on a trailer and using footage from that trailer, you're fine. If you don't often speak and show the whole thing, thus allowing viewers to "satisfy their taste" for the content through your video? You're on shakier ground.
This is a distinction most media companies know how to make, but YouTube personality Joe Vargas is finding that Warner Bros. has become much more aggressive than other studios in flagging content that uses its trailers.
"On the movie side, with my Reviews or Trailer Reactions, it's been mostly Warner Bros," he told Polygon. "They have hit other reviewers and critics with reviews and impressions videos, including Channel Awesome/Nostalgia Critic."
Vargas has been able to have the claims removed from his videos by contacting Warner Bros., but he also asked for guidance on how to avoid this situation in the future, and what they consider to be fair use vs. infringing content. The company has, thus far, ignored his requests for clarifications and have merely unclaimed his videos.
It's worth noting Vargas has 175,000 Twitter followers and over 2.1 million subscribers on YouTube. He provides a huge audience to the content he discusses, and so far has gone out of his way to work with Warner Bros. to make sure he's not infringing on their content. So far, no guidance has been offered.
We reached out to Warner Bros. ourselves to ask about these issues, and were told the company had no comment.
After 4 days my BvS CC Vid JUST got claimed. Going to contact WB direct & try to clear this up ONCE & for EVERYONE! pic.twitter.com/1RaRgXbpnT— Joe Vargas (@AngryJoeShow) July 15, 2015
"The only way to fight back is to dispute the claim, and wait to see if WB then 're-instates' the claim which effectively is giving me a DMCA notice," Vargas said. "Which I can then use to take action in court. But if I did it that way, I would receive an AUTOMATIC strike by Youtube on my channel, which with only one strike, limits my new video uploads to only 15 minutes in length (which is all my videos — effectively killing my show with just 1 strike) and if I get 3 strikes, my channel will be shutdown and removed permanently."
He's able to deal with these situations, but other channels aren't in the same position. "I have to send strongly worded emails to contacts at the company that I only happen to find because I get lucky," he continued. "If I didn't have those contacts or if I wasn't a bigger channel I would be screwed under WB's power. I'm sure and people have told me smaller channels get this all the time, that aren't breaking the law or doing anything illegal. All I can do is campaign on twitter to my followers to get WB to notice and act."
This isn't a widespread issue when it comes to covering films or trailers, however. "Note this doesn't happen with any other company," Vargas said. "Personally I think WB is just more aggressive about this stuff than others and they need to figure out their official policy and how they want to handle this."
This situation is even more distressing due to the fact the first few days, if not hours, of a video's life may be the most important, and the system is ridiculously weighted in favor of the rights holder.
"Companies can effectively use false claims to 'nullify' a video's earnings, that they don't like or agree with, for 30-90 days until you relent or until they have to issue a DMCA, which opens themselves up to a court case," Vargas said.
"But by the time you get all the way through the process, the videos relevance, effectiveness and earnings potential is completely destroyed. They know this. They know how the system works. All they have to do is hit 'claim' manually or let aggressive bot settings that they control 'auto-claim' it and wait for the little guy to give up. The potential for abuse is astronomical."
All Vargas, and likely other individuals working in video, would like is some guidance on how to use the footage without Warner Bros. considering it an infringement.
"All we are trying to do is spread the word and share our impressions on what's essentially free marketing for them — why do they feel that should be their property as well?" Vargas asked. "This is like the complete opposite of what Marvel is doing and it sucks balls."