The legal concept of “fair use” is very important to our business and is an issue you really care about, even if you don’t know it. Fair use is a carve-out of copyright law that allows people to use copyrighted material for certain uses. Parody is a great example of fair use. For example, Saturday Night Live can do a skip making fun of American Idol without having to purchase rights to that show. And, for example, we used some Jimi Hendrix in this video for Amnesty International and we didn’t pay for it. (You can learn more about Fair Use from our friends at American University’s Center for Social Media.)
The issue of fair use is complicated because there is no one to go to that will tell you if your use qualifies. The only definitive way to know is if you are sued. The dynamic here is interesting because even big media companies don’t have a big interest in suing too often and for something that just might qualify. The reason is that they might lose and the bar for fair use might be set in a way they don’t want it.
MoveOn and Brave New Films did a parody of Stephen Colbert called “Stop the Falsiness.” Viacom, the owners of Comedy Central, issued a take-down notice under the Digital Millennium Copyright Act (DMCA) and the video disappeared from YouTube. MoveOn and Brave New Films, with the help of a great organization called the Electronic Frontier Foundation (EFF), sued Viacom because they said this is clearly a case of fair use. Viacom backed down and the video is back up. And in exchange for dropping the suit, Viacom agreed on all kinds of consessions. From the EFF press release:
… The lawsuit was filed in federal court last month, after a parody of “The Colbert Report” was removed from YouTube following a meritless copyright complaint by Viacom. The humorous video, called “Stop the Falsiness,” was created by MoveOn and BNF using clips from the Comedy Central television series. It was a tongue-in-cheek commentary on Colbert’s portrayal of the right-wing media and parodied MoveOn’s own reputation for earnest political activism.
Viacom initially denied sending the Digital Millennium Copyright Act (DMCA) takedown notice that resulted in the removal of the video from YouTube, while saying it had no objection to “Stop the Falsiness.” However, Viacom later conceded it was the source of the demand and admitted error in taking action against the parody.
In the course of discussions with EFF and FUP, Viacom described the steps it endorses for protecting fair use and free expression as it targets copyright infringement on Internet video sites. This includes: manual review of every video that is a potential DMCA takedown target, training reviewers to avoid issuing takedown requests for fair use, and publicly stating that it does not challenge use of Viacom materials that are “creative, newsworthy or transformative” and are “a limited excerpt for non commercial purposes.”
Furthermore, in reaction to the MoveOn/BNF suit, Viacom moved the ball forward for Internet users’ rights. In order to address any similarly erroneous takedown notices in the future, Viacom has agreed to set up a website and email “hotline,” promising a review of any complaint within one business day and a reinstatement if the takedown request was in error.
