We’ve seen some questions and comments in the reblogs of our earlier post about SOPA that specifically ask about dealing with copyright strikes by YouTube and other hosting sites. Both of the writers/maintainers of fyeahcopyright are vidders and we both have a number of vids on YouTube as well as on other sites. Back in 2008, Heidi got an email from YouTube re her Welcome to the Black Parade fanvid for Supernatural, and responded to them with the following letter:
The use of the copyrighted material is justified as fair use under 17 USC 107 because it is (a) trasnformative and (b) does not adversely affect the market or potential market of the original work or derivative works. The central purpose of this investigation [into purpose and character of use] is to see … whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), Zomba Enterprises, Inc.; Zomba Songs, Inc., Plaintiffs-Appellees, v. Panorama Records, Inc., Defendant-Appellant., 491 F.3d 574 (6th Cir. 2007)
Neither of us have had an issue with a YouTube claim re a fanvid in the last three or four years, but if we were updating that letter, we’d probably mention this journal article:
“In assessing transformativeness, the courts generally emphasize the transformativeness of the defendant’s purpose in using the underlying work, rather than any transformation (or lack thereof) by the defendant of the content of the underlying work.”
R. Anthony Reese, Transformativeness and the Derivative Work Right, 31 COLUM. J.L. & ARTS 101, 118 (2008)
We’d also include mention of Lenz v. Universal Music Corp, 572 F. Supp. 2d 1150 (N.D. Ca. 2008) where the court held that fair use is a lawful use of copyright.
Yes, the number of cases that are strictly on-point regarding fanvids and fan films hosted on third-party sites is extremely limited, but by looking to the larger body of fair use law, one can often legitimately argue to a site that is hosting noncommercially distributed fanworks that the work is noninfringing because of the doctrine of fair use. YMMV IRL, of course.