If you follow vloggers like Nostalgia Critic or Honest Trailers, you might be familiar with the hashtag #WTFU. No, it’s not an acronym for a rude phrase—it stands for “Where is The Fair Use?”
Here’s the lowdown: YouTube videos that use clips or sound bites from other work have been facing an flurry of takedown notices for alleged copyright infringement. The problem is that these videos are only using bits and pieces of other media, such as a reaction video using a seconds-long clip to illustrate their point. There is little to no recourse for those facing such claims. As the Nostalgia Critic video addressing the problem points out, a vlogger can only dispute two claims at a time. In the meantime, the video in question is blocked and the vlogger cannot access the money they make off of views. Sometimes, a channel that gets too many copyright strikes gets shut down. Furthermore, claimants can sometimes take the money generated from the views from the video they’ve claimed.
One of the more notable channel takedowns occurred in February, when subscribers to TeamFourStar suddenly found an error page instead. TeamFourStar is a channel that precedes YouTube and is dedicated to making abridged parodies of hit series like Dragon Ball Z and Hellsing. The collective outrage was enough to reinstate the channel in short order. Meanwhile In an ironic twist, one vlogger got a copyright claim on a video in which they talked about a copyright claim. And the problem doesn’t only plague individual vloggers. One Twitter account shows a screenshot of a Ubisoft UK video with the company’s own content blocked on copyright grounds.
But what kind of companies are behind this? Who are the repeat offenders, and why do they do this? Are they just trying to troll vloggers, as this particular man harassed a movie reviewer? What are their views on fair use, and on who can make a claim?
The typical company hunting down videos for copyright violations uses a bot to track down sound bites and visuals, and sends a claim for each video, including the original video. The company sends a copyright claim to those videos and get ads placed on them. The original creator provides their username to the company so as to differentiate between the original video and the videos apparently using their content. In sum, the company collects both the revenue from the YouTuber that asked for their services and the videos that use the content from that original user, and then funnels the profits to the claimant.
There are a bevy of companies that have made the YouTube copyright system a kind of business, such as Shock Entertainment Pty, IndMusic, TuneCore, and Merlin. We will focus on four of these companies—Audiam, AdRev, Egeda, and YAM112003—for just a flavor of what is out there.
Audiam is a company based in New York that is dedicated to filing copyright claims in mediums like Spotify in addition to YouTube. On their website they claim that they “license, police, audit, research, collect and distribute interactive streaming mechanicals and YouTube royalties for our members.” They also have a YouTube video illustrating how a band and the “deeply disturbed music-loving cat guy” fan who used their music for a cat video can make money together on the fan’s popular YouTube video. Audiam uses the same system as described above. It clarifies that their services are available to anyone who has “exclusive copyright rights to the material in the reference file for the territories where you claim ownership.” The following is a list of what is not usable:
- Content licensed non-exclusively from a third party
- Content released under Creative Commons or similar free/open licenses
- Public domain footage, recordings, or composition
- Clips from other sources used under fair use principles
- Video gameplay footage (by other than the game’s publisher)
It’s interesting to note that “clips from other sources used under fair use principles” are not usable, but that there is no word on fair use principles in terms of sources claimed by their producer.
AdRev uses a system similar to Audiam. They claim that they have monetized over 30 million videos to date, and that in 2015 they have paid out over $10 million to their rights holders. The difference, however, is in how they define those who are able to use their service:
If no other third party has purchased the rights to the master and you have not released the rights to the master to a label or another third party, then chances are you still control it. Our team of copyright experts are here to assist you if you are unsure. Just send us an email.
The composition is the musical elements contained in your sound recording. If you wrote/composed the music from scratch, then you control the composition rights! If you are unsure, contact us.
There seems to be more room for interpretation, depending on what their copyright experts say. As with Audiam, cover songs are not included, but the company accepts “new, original production of a public domain composition.”
EGEDA, on the other hand, identifies as an international non-profit association and collection society primarily concentrated in the United States, Latin America, and Spain. It’s an organization that is a major supporter of the Cannes Festival and describes its efforts as “new services to fight Internet piracy.” The organization’s YouTube activities look as if they fall under the Tracking Service of Audiovisual Works on the Internet (SSAI) program, which is described as “dedicated to blocking scenes posted on the Internet without authorization of their rights-holders, with the objective of making the corresponding claims for payment.” It restricts its services to producers, or “someone – either a private individual or a corporate body – who takes the initiative and bears the responsibility for making an audiovisual work or recording.” To further qualify as a producer, they must finance a project and contribute “a certain amount of creative input and technical know-how.” EGEDA also opens up the possibility of interacting with producers directly or with other collecting societies.
YAM112003 is different from the previous three companies in that it is an Italian company that brands itself as an integrated marketing company. They seem to be more than just a YouTube copyright “troll,” as some online have called these companies. According to their “What We Do” section, YAM112003 runs social media campaigns, create videos for organizations, make training programs, create corporate websites, and facilitate e-learning websites. There is next to nothing on their website that describes the activities that #WTFU protests—and yet vloggers like Anime America have called out the company for filing claims.
The variety in what kinds of companies are claiming YouTube copyrights shows that at the very least, the dialogue with those who make a business out of these copyright claims needs to take into account how they define fair use, how they approach the copyright claims, and how much they value the claims as part of their business. When YouTube is asked again to reevaluate their policies, it would perhaps behoove them to keep these companies in mind—either for a more equitable interaction between these companies and the vlogger, or to inform a more studied approach towards the regulation of such claims.
Christine Chen is a J.D. candidate, 2017, at NYU School of Law.