Questions over the limitations and vagueness of fair use are circulating YouTube once again this time hitting creators who work on movie reviews, critical essays and longer form videos.
Conversation picked up last week after Chris Stuckmann, a popular YouTuber known for his movie reviews and who boasts more than 1.2 million subscribers, tweeted about problems he was encountering with Universal Pictures. Stuckmann said the studio issued a DMCA takedown for every video he put up that used any footage from a film belonging to a studio. Stuckmann, a longtime YouTuber, noted that his videos fall under YouTube’s fair use policies and Universal Pictures wasn’t playing fair.
“They take almost every claim to the appeal process, forcing creators to sign tons of forms before acknowledging their rights,” Stuckmann said. “I currently have two appeals running with them, and expect to hear back in as soon as 30 days. I’ve also received multiple claims from them on many other films throughout the year they decided to release without a fuss. I’m this close to seeking legal counsel because it’s beginning to border on harassment. The best we can do is hope that we’re loud enough for them to realize they legally can do nothing to shut down people who talk about their films.
“The thing is, I love movies. I love the whole process of making them and watching them. But it’s these greedy companies that ruin the magic. YouTube, I hope you’re listening. The Fair Use Act of 1976 has held up in court as recently as last year.”
Stuckmann’s tweets generated complaints from other YouTubers, both veteran and fresh-faced creators, who echoed similar problems. Dan Murrell, a critic for popular YouTube channel Screen Junkies, tweeted his support for Stuckmann, calling attention to the longstanding argument over fair use on YouTube. The common belief is that movie reviews and Let’s Play series are quietly okayed by the developers or studios because it acts as free publicity for the game or film.
“Online film criticism is a huge part of new media and fair use is integral to allowing your favorite critics to make a living,” Murrell said. “Studios have to start using copyright rules sensibly and stop punishing the people who are giving their movies exposure and coverage.”
This isn’t a new issue with Universal Pictures, either. Stories from 2017 popped up on Twitter, as creators pointed out the fallacies in the copyright content disputes. One creator, Matthew Brando, pointed out that his appeal over a copyright strike from Universal Pictures was denied even though the video didn’t use any of the footage from the film.
I'm at a loss for words. On what grounds does a computer wallpaper in the bg of the shot from a trailer count as copyright, @UniversalPics? pic.twitter.com/goUG5V56uS— Matthew Brando (@michaelmannman) August 23, 2017
YouTube defines the Fair Use Act as “a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner.” The company further states that there are four core principles to help creators ensure content is protected under the act, including the video’s purpose and intent, how much of the video is original content, the creator’s reason for the video and the potential effect the video has on the market for the original work.
It’s the latter that could potentially be most relevant to this specific case. If Universal Pictures didn’t want negative reviews of its movies, like Furious 7 for example, being published on a channel with more than 1.2 million subscribers, the studio could issue a copyright strike claim. This is the issue, creators claim, that isn’t exactly fair.
The Fair Use Act is still relatively case-by-case, hence why YouTube asks creators to appeal if they believe their video falls under the proper guidelines. YouTube’s guidelines on fair use specifically state “there is actually no silver bullet that will guarantee you are protected by fair use when you use copyrighted material you don’t own.”
“Even if you’ve added a little something of your own to someone else’s content, you might not be able to take advantage of the fair use defense — particularly if your creation fails to add new expression, meaning, or message to the original,” the company’s guidelines state.
Although the conversation is circling around the film community on YouTube right now, this is something gaming creators have dealt with for years. When developer Campo Santo issued a copyright strike against Felix “PewDiePie” Kjellberg for his Firewatch Let’s Play video because studio head Sean Vanaman took issue with Kjellberg’s use of a racial slur, the intent of the strike didn’t matter. Mona Ibrahim, a lawyer focusing on the video game industry, wrote about the situation in an opinion piece for Polygon, noting:
Vanaman’s approach in particular has set off serious debate, as his tactic may be seen by some as an abuse of the Digital Millennium Copyright Act.
But from the perspective of the content owner, Vanaman’s reasoning is irrelevant. You see, a licensor doesn’t need a reason to withhold a license. That also means that they can withhold a license for any reason. In the case of a Let’s Play video, a content owner like Campo Santo would argue that they can revoke their permissive, non-exclusive license to stream (granted to end users) against anyone who uses their content in a way they find offensive, or in a way that associates their game or brand with something against their values.
Ibrahim also commented on the current issue facing movie critics on YouTube in their fight with Universal Pictures, telling Polygon there’s no concrete measure that says “this is fair use, that is fair use.
“There is no hard and fast rule on whether anything is fair use acceptance,” she said.
Ibrahim did say, however, that a studio like Universal Pictures would probably look into the grander scheme of the situation and survey all the risks associated with DMCA takedowns in the company’s cost analysis report.
“Some of these companies want to have absolute control over what people say about their content,” Ibrahim said. “That’s how they regulate their content. I’m not saying that’s Universal’s intention, but there is reason to believe that would go into their cost analysis. Does Universal want to deal with the bad press associated with these takedowns? It’s more a matter of how much it’s going to cost, what’s the benefit and what are the risks? What are they protecting here?”
The same situation happened last month, too. YouTuber Chris Hodgkinson was hit with a copyright strike by someone on Super Seducer developer Richard La Ruina’s team simply because the team was insulted by Hodgkinson’s review. Although La Ruina and his team requested a take down of the strike, Hodgkinson said it was a bizarre period, and an important reminder of how quickly DMCA strikes can be abused.
“When it’s a small channel like mine, where I don’t necessarily have the biggest reach and it’s very hard for me to get attention when something like this happens, it’s scary because this could very much ruin my channel,” Hodgkinson told Polygon. “I was talking to someone else who has an even smaller channel than mine and who’s been harassed before and they had to make an entirely new channel because of it.
“It’s very worrying, because we don’t get the proper information when this does happen, and for a lot of people, it is their livelihood.”
This is something Ibrahim echoed when speaking to Polygon about Universal. Many of the YouTubers or influencers who are creating these videos simply don’t have the funds to take on a legal suit against a mega studio like Universal.
“For a lot of the influencers, the takedown is kind of a deal breaker,” Ibrahim said. “They don’t have the legal fees to fight it. It’s a risk free measure for universal because the likelihood that someone will come back to fight them is nil.”
Stuckmann pointed out on Twitter that after his concerns over Universal Pictures’ use of the Fair Use Act was unjust started to spread on Twitter, his appeals have started to be accepted.
“This is the fastest they’ve ever released a claim after I’ve appealed it,” Stuckmann said. “I can only hope they’ve heard us.”
Polygon has reached out to Universal Pictures for comment.