Miss Slik's Guide to Fair Use and Appealing Blocked Videos on YouTube

So I learned more about the concept of "Fair Use" this morning than anyone probably ever wanted to know... But you should know if you ever try to make a video that uses any portion of a copyrighted work. This applies to music producers out there too.

I made a video that was Episode #2 of my new series called Becoming Overnight Internet Famous - Miss Slik Does Bollywood. In my video, I showed snippets around 1 minute long of 4 Bollywood videos I found (in another video on YouTube ironically). Then I did my own version of those dances. Much like my first episode of Becoming Overnight Internet Famous, I also added my own subtitled comments throughout the entire video. 

I finished doing all the video editing yesterday morning and subsequently posted my video on Facebook and YouTube. It was then taken down on both platforms about an hour or so later. I got messages from FB and YT saying that this was due to Yash Raj Films, the copyright owner of one of the videos I used, claimed copyright infringement.

Well I wasn't happy about this... But ever the diplomat, I sent a very lovely message to Yash Raj Films through its Facebook page and politely requested permission to use the video snippet. I have yet to hear back from them though. 

Here is my polite message:

Hi There.. 

I'm Niki Slik.. You blocked my video I made so I deleted it. I would like to repost but I will add more info to the credits with links to your page if that is agreeable with you. I should have to begin with so please accept my apology for the oversight.

I write a blog called Miss Slik's Guide to Life and will make sure to shout out your production company in the accompanying blog post as well so my readers all over the world can learn about your production company.

My intention is not to infringe on your copyright. It's to show an example of a great Bollywood music video (which Aaja Nachle definitely is) and compare the singer's great dancing to my terrible dancing in my unsuccessful attempt to try to become a Bollywood star. I have a reader in Mumbai who reached out to me over the weekend and he inspired my video idea.

The Aaja Nachle video is 12 years old and, while it may be a quintessential film in Indian culture, it probably doesn't get much attention from the diverse audiences of other ethnicities in North America and Europe where most of my readers live. 

My video might help with that a little, especially if I add in shoutouts to Yash Raj about how awesome and nice you are about letting me use the video snippet.. which I would really like to do because I love establishing new working relationships with cool people and companies.

I greatly appreciate your time and understanding. Please let me know if you are open to this idea.

Thank you!

Niki Slik

I meant every word of that message and still do if anyone from Yash Raj ever responds.

However, I was marinating on the message I received from YouTube about my video being blocked and decided to do some research. That is how I found out about this concept called "Fair Use", all that it entails, and which type of works can claim it to defend their work which uses copyrighted material.

So here's where this gets fun and interesting... We actually have 2 Live Crew (ya'll know I love me some 2 Live Crew and Uncle Luke) to thank for Fair Use. They got sued for copyright violation by making their own version of the classic oldies song "Pretty Woman" by Roy Orbison. Now, it wasn't Roy Orbison who sued 2LC since he doesn't own the rights to his own super popular song. A company called Acuff-Rose Music owns the song so it did the suing.

Just FYI BTW so you have some perspective, we all know the Roy Orbison version... But here is the 2 Live Crew version....

So Acuff-Rose Music and 2 Live Crew went to court to legally duke it out. The battle lasted 3 rounds and our hip hop heroes lost the first 2 in the regular and appellate courts. But, 2 Live Crew didn't give up. They took their case all the way to the Supreme Court... And they freaking won.... And thus they established a defense for all artists to come after them who use copyrighted works as part of their own new work they create.

But... And this a a big BUT (insert 2 Live Crew joke pun here)... Your new work you create that uses someone's copyrighted work has to meet certain criteria in order to successfully claim Fair Use as a legal defense. If it does, then YAY! If it doesn't, you're screwed.

Now I found this explanation of Fair Use in a very helpful article from Stanford University Libraries called What is Fair Use?...

"In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement."

So, in order for the new work to be protected from a legal thunderstorm by this Fair Use umbrella, it has to meet certain criteria that make the new work "Transformative". That means the copyrighted material is used in such a way that it becomes more your own than someone else's because it's about what you did with it now... Not what they did with it then... Well sort of...

Here are the 4 Factors in determining Fair Use:

• Purpose and Character of the use of the copyrighted work... i.e. The new work is a Parody, Commentary, and/or Critique of the original copyrighted material... Like someone reviewing shows and movies using snippets of that show or movie being reviewed are Fair Use because the creator of the work is adding commentary and critique on the original work. This can be positive or negative.. But Fair Use definitely exists when it applies to the negative even moreso because whoever owns the copyright doesn't necessarily want the original being used so it can be ridiculed. This falls into the Constitutional realm of protecting free speech and if the copyright infringes on the 1st Amendment.
• Nature of the new work and its use of the original... If the copyrighted work is published versus unpublished and/or factual versus fictional... Published, factual info taken from an original work is considered Fair Use like 99.9% of the time. This is why people don't get sued for copyright infringement for writing school papers that include quotes from various books and articles. When it's for educational purposes, Fair Use applies.
• Amount taken from copyrighted work and substantiality it has on your new work... 2 Live Crew's version of Pretty Woman was a parody rather than a remake and it used samples of the original song to give the audience context for their parody. But you can only take as much as is necessary to make your point. You CANNOT present the whole original work in it's verbatim entirety without any sort of added context to substantiate why you're using it.
• Effect of the new work on the potential market for the original copyrighted work... which means your new work can't be considered a replacement of the copyrighted work and the new work can't take potential money and attention away from the copyrighted work.

Well, after conducting my research on all this Fair Use stuff, I concluded that my Bollywood dance video falls under that Fair Use umbrella. It definitely meets the majority of the criteria I outlined above, especially the first point since it's a parody, commentary, and/or critique of the original works.

So I decided to submit a formal dispute to YouTube so that my video will be unblocked and allowed to be freely viewed by the world once more. This wasn't the easiest process to do on my cellphone because you have to get into a certain part of the YouTube Studio website to access the details for why the video was blocked. I figured out this can't be done in mobile view.. You have to change it to Desktop view.

Once you get to the right place to file the dispute, you have to check several boxes, including one for claiming Fair Use. Then you have to pick a reason from a dropdown list for why your video is Fair Use. After that, you have to type up your "Rationale" for why your video is Fair Use that will be read by YouTube and whoever owns the copyright, which in this case is Yash Raj Films.

Here is my "Rationale" from my appeal to YouTube: 

I'm claiming Fair Use based on the fact that my video meets several of the points outlined in Supreme Court Case Campbell v. Acuff-Rose Music which established federal legal precedent for Fair Use in a new "Transformative" work:

1) My video includes Commentary and Critique of Copyrighted Work - Each video snippet of Bollywood dancing used in my longer video, including Aaja Nachle, has subtitles I added with my own commentary and critique through the duration of the video snippets and my video in its entirety. My added subtitle comments are about the actors and actresses, costuming, dancing, and my own thoughts on the Bollywood videos. As Commentary and Criticism of copyrighted works is one of the main factors allowed when determining Fair Use of said work, I believe my video and use of Aaja Nachle in it is completely within that realm along with thousands of other videos on YouTube which do the same.

2) My video includes Parody of the Copyrighted Work and uses said work so the parody is relevant. - My video is about me trying to emulate the dancing in the Bollywood videos in a comedic way. I named several of the dance moves in the original works in funny ways. For example, in Aaja Nachle, I called one of the moves the "One Arm Swim Kick". I then repeated a similar move in the portion where I am dancing... though not nearly as smoothly. But that is intented as my video is a comedic parody of me trying to immitate the dancing in Aaja Nachle. The beginning of the video snippet I used of Aaja Nachle has the actress dancing in front of a moon and then the lights come on. In my parody, I turned my overhead ceiling fan light off and then on and added subtitle comments about my low budget effect because "I don't have a moon".

3) My work does not replace the original nor damage the market value of it. My video positively highlighted a 12 year old obscure 146 minute movie by showing a 1 minute clip of it. That would improve market value of the original if anything.

After you submit your dispute, you get a confirmation screen with a note that the Disputing Party has 30 days to make a decision. Hopefully my explanation is compelling enough to get my video unblocked. I think I made some good points and presented a strong argument with my legal precedent jargon and whatnot. Citing a Supremely Court case definitely has to give it some legit weight right?

I guess we'll find out the official verdict some time in the next month so definitely stay tuned because I'll be sure to update you. I'll also finally post my video if and when it's unblocked. In the meantime, I think we've all learned an invaluable lesson today.

So until next time, stay up.