YouTube Fair Use: Documentary Makers Defeat Gaye, Thicke, Bee Gees & Jackson

In December 2019 a web-series dedicated to debunking copyright and
copying myths was hit with four copyright complaints over the alleged
illegal use of tracks from Robin Thicke, Marvin Gate, Bee Gees and Michael Jackson. However, the makers of The Creativity Delusion: Geniuses Steal, decided to fight back and have now defeated every single claim against their video. Fair use, they say, is worth fighting for.

Late last year, TorrentFreak covered issues facing Copy-Me.org, a group dedicated to informing the public on copyright-related matters.

As architects of the web-series Creativity Delusion, Copy-Me had published an episode entitled “Geniuses Steal”, which explored the notion that no one really creates something out of nothing and even the greatest minds rely upon the inspiration of others. Unfortunately, the work fell victim to claims from not one but four separate directions.

According to the automated claims that appeared in the group’s YouTube panel, their use of snippets of songs by Marvin Gaye, Robin Thicke, Bee Gees and Michael Jackson constituted an infringement of the various labels’ rights, despite being fairly obvious examples of fair use.

However, after a bold fightback, Copy-Me has now emerged victorious, as the group’s Alex Lungu explains.

“The claims in question were on samples from different songs we used to talk about the ethical & legal problems when dealing with art and copyright. The Marvin Gaye vs Blurred Lines case is one of the biggest copyright suits ever. Marvin Gaye’s family won five million dollars and we find that insane,”

Lungu informs TF.

“So to prove how similar Marvin Gaye’s song is to plenty of other songs from its time, we played them side by side with You Should Be Dancing (Bee Gees), Don’t Stop ‘Til You Get Enough (Michael Jackson), Everybody Dance (Chic) and September (Earth, Wind & Fire).

The group received copyright claims on four samples – Got to Give It Up, Blurred Lines, You Should Be Dancing and Don’t Stop ‘Til You Get Enough. That meant that Sony Music Entertainment and Universal Music Group got to play ads against the documentary show, even though Copy-Me never monetized the content in the first place.

“I filed disputes immediately on the grounds of fair use. We used small samples and we didn’t affect the owner’s market, so I knew the video was safe,” Lungu says.

“But the thing with Youtube’s copyright claim system is that it doesn’t matter how legal or illegal the use is. It’s in its own world. The copyright claimant is the judge and jury and there’s no third party assessing the claim.

There’s no penalty if the claim is wrong or the claimant lies. So you’re left with reading up on the law, fully understanding the forms YouTube asks you to fill and hoping for the best.”

The responses to the disputes were mixed. Three received absolutely no response from the claimants and after 30 days waiting, were automatically dropped by YouTube’s system. But that still left the fourth claim and dispute concerning Don’t Stop ‘Til You Get Enough up in the air. That proved less easy to purge.

“One dispute was rejected (Michael Jackson, Sony Music Entertainment/SME), so there was probably a real person there who thought they can actually make money off our work.

So we were left with a video which was monetized in some countries by SME on the grounds that SME alone thought we were illegally using their song – which we weren’t,” Lungu says.

Lungu admits that at this point, he was “a bit afraid” to file an appeal on the grounds that he would have to give all of his personal information to Sony who could then sue him or delete the documentary. Again, with no oversight or penalty if their claim wasn’t valid, all “on the whim” of a “company intern”.

Lungu decided to go all the way, filed an appeal and explained himself yet again. He received no reply but with the clock ticking, things went his way. One month later the appeal expired and the claim against the documentary was released.

Nevertheless, that wasn’t without cost. Not counting all of the administrative work and upheaval, it still took two months to counter all of the claims and get back on an even keel.

“That’s an incredible amount of time to have your video in copyright purgatory. I can’t even imagine what must go on inside someone’s mind who makes Youtube videos for a living,” he says.

“There are plenty of completely legal uses one can make with a song, without asking for any permission: criticism, parody, quotation and so on. Automated claims will never distinguish between legal and illegal ones. Only a judge can do that, but it’s insane to think one should decide for the thousands of videos uploaded every second.

“And I am genuinely concerned about the nature of online videos when big platforms like Youtube and Facebook will be forced to abide by the new European Directive on copyright filters,” Lungu concludes.

Originally published as “YouTube Fair Use: Documentary Makers Defeat Gaye, Thicke, Bee Gees & Jackson” with the Attribution-NonCommercial 3.0 Unported (CC BY-NC 3.0) license