Last week remix artist Jonathan McIntosh had a troubling story to tell which put a spotlight on the current problems facing transformative works creators. In our current environment of automated copyright claims and the layers of entities users may have to go through to assert fair use rights, it takes real dedication sometimes to be heard.
McIntosh's work, Buffy vs. Edward, is a well known video which has, as he cites in his post, been used on numerous occasions in academic settings. It is also among the Test Suite of Fair Use Vids that the OTW assembled as part of their successful case for a renewal of the DMCA exemption for vidders.
McIntosh details months of effort to get his video reinstated which would, ironically, have been much simpler had he been making an effort to profit from the video. It was because ad placements have been disabled on his account that he was targeted by a subcontractor for Lionsgate, MovieClips, to either permit them or have the video deleted. Yet as a matter of U.S. copyright law, the non-commercial nature of Jonathan's video bolsters its status as copyright fair use.
Though his video was eventually reinstated, it’s striking how much effort McIntosh had to put into dealing with the problem. Jonathan's video has been cited by the U.S. Copyright Office as an example of transformative fair use, yet he has had to defend it from numerous attacks and accusations. For every artist like him who is very familiar with the law and is willing to fight for his rights again and again, how many people are simply seeing their work disappear?
This is one of the reasons we can see chilling effects, especially since this situation is a reminder that even clear cases of fair use aren’t safe from this kind of action. In fact, it appears that the video that was the subject of Lenz v. Universal, the case that established that copyright holders have to consider whether something is fair use before sending a DMCA take down notice, has once again been removed due to a copyright claim –- and this was a video which has already been litigated and determined to be fair use.
The OTW wants to remind fans that its legal advocacy project is a possible resource for someone who finds themselves in a situation where their work has received takedown notices, and offers recommendations for vidders in particular on our Fan Video and Multimedia section of our website.