Hawk vs. Drone: Fair Use and Copyright

So, I have a popular YouTube video. (It’s not that popular anymore, but it was once.)

YouTube recommended I watch a video: Drone Crash, Fail & Win Compilation 2015, Part 3/3 (watch in 1080p).

So, I watched it, and was somewhat surprised to see a video I recognized in it: mine.

Now, this particular video is not licensed under a Creative Commons license. (The reason for this is that I have seen plenty of evidence that people misunderstand what creative commons *means*, and don’t bother to attribute — sometimes properly, sometimes at all — and I didn’t want to have to argue about it with people who were ripping off the video for their own personal profit.) This means that if someone wants to use the video in a way that isn’t allowed by fair use (or some other portion of copyright law), they need to obtain a license. Some people have obtained a license. In other cases, I’ve been able to convince people who were hosting the video themselves to instead embed the YouTube video. (All of the ad proceeds from the video are donated to the Mass Audubon Society, so this matters to me more than it otherwise would: I feel a responsibility to maximize the money that is donated because of this video..)

In the comments on the compilation video, someone said: “He has just stolen all the clips from other peoples videos without even asking them first. Only Creative Commons videos are free to use so its copyright theft!”

Now, this misunderstands the way copyright works a little bit — Creative Commons videos aren’t ‘free’ to use in the sense of freedom, they require specific requirements that still need to be met — but it’s generally reasonable: Reusing someone’s copyrighted content without a license *may be* copyright theft. But it isn’t when such use is allowed under fair use. (There are other cases too, but I think fair use is the most straightforward claim in this case.)

So, to that end, I replied with the following analysis of whether the 12 seconds of my video used in this compilation was a violation of my copyright. I welcome comments or feedback on ways in which you disagree with or support this analysis.

In the US, 17 U.S.C. ยง 107 defines a 4-prong test for determining whether something is fair use. In particular:

Purpose and character of the use: ‘whether the art aims to only “supersede the objects” of the original for reasons of personal profit.’ I don’t think that putting all these clips together creates a meaningful work of new art, and that it would fail the test for Purpose and Character of the use. This is not an educational video; there is no commentary; it’s done in no way other than to get eyeballs. (If there were no ads on the video, one could at least claim it wasn’t commercial in nature, which would act in its favor, but there are ads.) That said, the combination of all of these shots together certainly puts some pieces in a different light; that is, there is some creativity being applied. I don’t think it crosses the line

Nature of the copyrighted work: This is not documentation or news footage; it is not the case that the nature of the work is special in a way that would allow it to be meaningfully protected under fair use, as far as I can tell.

Amount and substantiality: This is the real question, and varies a lot depending on the video. For the Burj Khalifa video, there’s only ~2 seconds of video, and I would argue it could be reasonably said that this isn’t the substantive portion of the work. However, for the Hawk vs. Drone video (which is mine), the 12 seconds of selected video very much are the substantive portions of the video — in particular, that specific chunk of the video was exactly the same 14 second chunk of video that a national Nightly News station paid $850 for a license to. Since the Grand Upright Music, Ltd. v. Warner Bros. Records Inc. case in 1991, there has been a massive move towards licensing for music sampling, and this fits a similar role: I think that for some of these videos, there is clear evidence that the amount and substantiality prong is failed by this video.

Effect upon work’s value: I think this one is probably the one that this video succeeds in the most. Specifically, I think that this compilation video does not infringe upon the value of any of the works it has taken from in a serious way. In particular, I don’t believe that anyone who is a likely viewer of my video would say “Oh, I’ve seen the hawk video as part of this compilation; now I’m done.” That said, I think this prong could be minimized even further by including links back to the source videos in the comments: If the creator had done that, I think that the expectation would be that the overall effect would be even less substantial. The most significant video might even be mine — it is one of the longer clips, and it is certainly one that contains the most of the relevant content. (The original source video was only 30 seconds long in the first place — and the other 18 seconds were pretty boring.) With that being the case, I think that it could be argued that this video does not have a meaningful effect upon the work’s value, and might be acceptable under fair use for that reason.

Taken in sum, I think that the video is right on the edge of a Fair Use claim; I think that this could be further improved by the creator by removing ads, and linking to source videos in the description of the video. As is, I have personally considered and rejected the idea of submitting a DMCA claim for my copyrighted content which is contained in this video, because I think that content of this type should be allowed under fair use, even if our current courts would take a protectionist view towards this content in particular. Compilations like this rarely detract from the value of the original work: they create new value in their combination.

Of course, reasonable people may disagree on several of these points.

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