It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, Entertainment Weekly and discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

This past summer, together with the Electronic Frontier Foundation, I even screened the remix for the US Copyright Office at the 2012 hearings on exemptions to the DMCA. Afterward my Buffy vs Edward remix was mentioned by name in the official recommendations by the US Copyright Office (pdf) on exemptions to the DMCA as an example of a transformative noncommercial video work.

"Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth."

-Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube's system and filed a DMCA takedown and had my remix deleted for "copyright infringement." Below is a brief chronicle of my struggle to get Buffy vs Edward back on YouTube where it belongs.

On October 9th 2012 I received a message from YouTube stating that Buffy vs Edward had "matched third party content" owned or licensed by Lionsgate and "ads may appear next to it." Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

I always turn all ads off on my remix videos and never profit off them. But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires. Incidentally this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones because they are not ”monetized platforms“.

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

Less then 24 hours later however I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive popup ads.

Concerned at what appeared to be a blatant disregard for fair use provisions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1000 word legal argument citing case law and explaining how Buffy vs Edward was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount used and market effect. YouTube's built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

On November 26th 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had "matched third party content" owned or licensed by Lionsgate and that ads may appear on my video. Wait what? Deja-vu. Hadn't I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for "visual content" owned by Lionsgate and the claim I had just fought and finally won had been for "audiovisual" content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media.

 Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So again I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which again lay out very clearly all the fair use arguments. And again, I waited for a response.

On December 18th I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but still insulting because my video was not infringing in the first place.

Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.

“The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.”

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via email, despite fair use being raised multiple times. 

Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, the case of the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate, and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit two lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 popup video version of Buffy vs Edward here.

Reposted with permission from RebelliousPixels.com

Ms. Pinsent is fighting to prohibit so-called “mash-ups,” which allow anyone to take elements of works that Canadian artists have created and mix them with other works to create something new. She argues the practice is “morally wrong” and constitutes a form of plagiarism.

"It's much less likely that you'll be able to make a living doing it."

"A generation has come along who don't think they should pay for music."

"I think there's something about paying for music that makes it more intense; you've got to listen harder to music. If you pay for it you're going to pay attention to the record you bought and get your money's worth."

"A mash-up is not something that you'd really want to listen to more than a few times because it's like a joke, isn't it, really?"

"And they're not adding anything. They're not adding--they're not a contribution to the future of music, I don't think."

"Anything that can take on the role that radio used to have and deliver new things to people that they're gonna like. It's gonna prosper."

You are a mashup of what you let into your life.

Imitation is not flattery. It's transformation that is flattery.

MR: Yeah. Now, "Home" is your new single?

JR: Yes.

MR: And it comes with a video.

JR: I've got to be honest, man, I don't really like the video. They kind of wanted to do this sort take off on Lost In Translation, and I'm doing a hundred things, and I'm like, "Sure, okay, that's fine. Let's do it." You know, there's another video out on YouTube that the fans made. They sent in little video clips and some woman edited them together, and I think it captures a lot more emotion than the official video did.

MR: Often, fans do know what's best.

JR: They do, they always do.

MR: Something For The Rest Of Us also is released as a deluxe version with a digital download of "Home," a signed lithograph, and three bonus tracks--Flesh For Lulu's "Postcard From Paradise," Pete Townshend's "Rough Boys," and the Kinks' "Catch Me Now I'm Falling"?

JR: Yeah, yeah.

MR: What inspired the covers?

JR: Well, I love that Flesh For Lulu song. It's such a great song, and I was looking through the old CDs and stuff trying to download it online. Actually, I have to confess that I went to Limewire and found a copy of the original song because I couldn't find it on iTunes. So, if I ever run into the guys from Flesh For Lulu, I promise I'll give them a buck (laughs). It's just such a great pop song, and people don't write songs like that very much anymore.

Walk around the electronics markets in Shenzhen and you'll see these devices. I saw a great iRobot-branded iPad knock-off with the Android character on it, which was a pretty excellent combination of three brands.

But here's one I really liked: the G1-on-the-outside + iPhone-on-the-inside smartphone.

It's easy to dismiss these products as the work of cheats and counterfeiters, but that is only half the story. A lot of innovation is occurring in the Pearl River Delta, unencumbered by law and protocol. As an entrepreneur here in the USA, it is fascinating to observe this kind of hardscrabble creativity playing out in different ways in different places.

...a video of Sue dancing to Olivia Newton-John's 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue's camcorder: up to $300,000). And let's not forget the glee club's many mash-ups -- songs created by mixing together two other musical pieces. Each mash-up is a "preparation of a derivative work" of the original two songs' compositions -- an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for -- or hope to get -- the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 -- times two.

You might be tempted to assume that this tension isn't a big deal because copyright holders won't go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops, to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles' copyright holders tried to prevent the release of The Grey Album -- a mash-up of Jay-Z's Black Album and the Beatles' White Album -- and only gave up after massive civil disobedience resulted in the album's widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don't hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

These worlds don't match. Both Glee and the RIAA can't be right. It's hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can't do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee -- after Sue's Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators?

Current law favors copyright holders. But morally, there's nothing wrong with singing your heart out. Remixing isn't stealing, and copyright isn't property. Copyright is a privilege -- actually six specific privileges -- granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren't "property" in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices -- choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to "promote the progress of science" -- a word often used in the 18th century to mean "knowledge". The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me -- what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

"Someone sends me the links every time there's a new one," says the director, on the phone from Vienna. "I think I've seen about 145 of them! Of course, I have to put the sound down when I watch. Many times the lines are so funny, I laugh out loud, and I'm laughing about the scene that I staged myself! You couldn't get a better compliment as a director." Some of Hirschbiegel's favorites are the one where Hitler hears of Michael Jackson's death, and one in which the Fuhrer can't get Billy Elliot tickets

But perhaps the Bulletin is merely on-trend--or even ahead of its time. The Drudge Report, the Huffington Post, and Real Clear Politics have made names and money by sifting through RSS feeds; Tina Brown and Barry Diller are preparing the launch of their own news aggregator. Mike Ladyman and company may simply be bringing guerilla-style 21st-century content aggregation to 20th-century print media: publishing the Napster of newspapers.