The Growing Problem of Phony “Fair Use” Claims: From Michelle Shocked to Axanar

Stephen Carlisle March 11, 2016

Last week saw a settlement in the closely watched fair use case of Equals Three v. Jukin Media. ¹ At issue were videos to which Jukin Media owned the copyright which were being re-streamed by Ray William Johnson who made “comedic commentary” on them. ² After being on the receiving end of a few DMCA takedown notices, Johnson and Equals Three took the measure of suing Jukin Media, claiming “Jukin acted in bad faith by filing a takedown notice without first considering whether Johnson’s videos were protected by fair use.” ³

It’s a good thing Equals Three settled the case. The Hollywood Reporter contacted one of the jurors who said that the jury had in fact reached a verdict, and would have ruled against Equals Three, with a ruling that the videos were not “fair use.” ⁴ How many? All of them. Each of the 48 videos at issue would have been declared not fair use, and therefore infringing. ⁵

For those keeping score at home, this would have meant a minimum of $36,000 in damages, plus attorneys’ fees.

“’The jury came back with a unanimous ‘no’ on each count, no fair use,’ the juror said. ‘We just didn’t feel that the videos were transformative enough to count for fair use.’” ⁶

This reflects a growing problem, namely that fair use is being manipulated from a fairly complex legal defense, to a Harry Potter style magical incantation that, in the minds of the content borrower, makes all copyright problems go away.

Take, for example, this YouTube video:

BTW, despite the caption, this is not the real Gentle Giant.

It popped up in my Facebook feed as I am a huge fan of the English progressive rock band “Gentle Giant.” ⁷ Even Wikipedia will tell you “Gentle Giant’s music was considered complex even by progressive rock standards…” ⁸ The song being performed here, Cogs In Cogs, is dauntingly complex, and if you watch the video, you will see it requires three vocalists who can sing in counterpoint.

So lads, my hat’s off to you on the musicianship side, but what really struck me was this legend which accompanied the video:

“This presentation contains copyrighted material under the educational fair use exemption to the U.S. copyright law.”

Sorry guys, but unless you attend the “School of Rock” and this is a video of your recital, this is flat out wrong. This is a promotional video for your band. It is in no way, shape or form “educational” in any sense of the word and is clearly not fair use.

This is not an isolated incident. Instead, it reflects a growing problem.

Indie Filmmaker Ellen Seidler recounted this exchange over at the Vox Indie website:

“It’s a clip that lasts, only several minutes in length and you’ve set up Content ID to match and monetize clips of this length. The matched content is not commentary or a review, only a mashup of scenes taken from your film. You receive notification via your Content ID dashboard that the uploader has “disputed” your monetization claim. (Never mind that this doesn’t involve a takedown, only monetization of the clip).” ⁹

The dispute of the Content ID monetization request claims the following (which is posted as a screen shot as well):

“Reason: All non-original content is in the public domain

Note: Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for “fair use”; for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.” ¹⁰

First off, the material is not in the public domain. Secondly, the challenged video contains no commentary at all. It is merely a series of film clips, and is absolutely not fair use. ¹¹

Somebody has fed this (anonymous) YouTube poster some very wrong information. And it does not stop there.

David Newhoff over at The Illusion of More website recounted this abusive fair use claim by a YouTube uploader against musical artist Michelle Shocked: ¹²

“[Michelle]…happens to be totally cool with unlicensed YouTube video covers of her songs, as long as the user respects two simple conditions. The first is that the video not be monetized with advertising because Shocked doesn’t want Google to earn revenue from her work without an agreement… The second condition is that Shocked prefers that her name not appear in the video file title, but rather in the description crediting her as songwriter/composer. The reasons for this are myriad with regard to maintaining some control over search results (and even monetization) of her name, but suffice to say, it’s her prerogative and an easy enough condition to respect.”

“In fact, Shocked has had numerous cordial exchanges with online performers of her songs, thanking them for the cover but asking them politely to remove her name from the title. And until recently, all have been happy to comply, grateful to have a friendly exchange with the songwriter.

But this was not the case for one YouTuber who goes by the name Martin DX1KAE, who uploaded a video of himself playing Shocked’s song ‘Memories of East Texas’ and used her name in the main title of the video file. As usual, her first response was to write Martin, thank him for his “beautiful cover” of her song, and to ask that he kindly remove her name from the title and instead use it in the description. After some time without a response from him, and seeing no change to the file name, Shocked sent a takedown notice using DMCA procedures and subsequently received notice from YouTube that Martin DX1KAE filed a counter notice in which he stated his opinion that his video cover performance constitutes a ‘fair use.’” ¹³

Again, clearly not fair use. But, again, someone has incorrectly informed this person of what the law of fair use provides, and does not provide.

And then, there is the continuing problem of Axanar.

Recall that previously on this blog, I discussed the copyright problems of “fan fiction” which relies heavily on the principles of fair use. ¹⁴ Highlighting this problem was the proposed film Axanar, which used multiple elements from the Star Trek TV and motion picture series, and claimed to be “fan fiction,” even though it had raised over $1 million in crowd funding contributions. The Producer even said that CBS had given its tacit approval, relating that “the network simply told him that they can’t make money off the project.” ¹⁵

It seems that the Producers have a very expansive idea of what “not making money” encompasses.

As it turns out, the main producer has drawn a salary of some $38,000, and his girlfriend/ secretary/ fulfilment manager was getting paid some amount as well, even though it is claimed that her salary is deferred. ¹⁶ Further, it has now been revealed that all of the actors and crew are getting paid as well, which sort of takes this film beyond the realm of a “labor of love” that fan fiction is supposed to be. Says producer Alec Peters:

“’Well, it’s real simple: We don’t ask anyone to work for free,’” Peters said. ‘They all get paid. When Richard Hatch worked on ‘Star Trek: New Voyages,’ he got paid. When Lou Ferrigno was on ‘Star Trek Continues,’ he got paid. Actors are always getting paid.’”

“Crew? We had two Academy Award winners working on ‘Prelude to Axanar.’ Now those people can go out and work for $500 a day. They’re coming to work for us for $150 a day. Is it wrong that we pay them? You know, if you want a fan film, then go see a fan film. We’re trying to make the best Star Trek possible.” ¹⁷

So which is it? Is Axanar a “fan film” that could be fair use? Or is this a direct competitor to the Star Trek franchise for which no licenses or permissions were obtained from the copyright owner? Once again, seems like the person copying the copyrighted material wants it both ways.

Then there is the $250,000 allocated for renting space and building sets, including $50,000 for retro-fitting their building into a “sound stage.” ¹⁸ Why? Are there no sound stages available for rent in the entire Los Angeles area that don’t need $50,000 worth of renovations? As this indie producer put it:

“Why, in a town that has far more soundstages than it has Starbucks, do you spend $182,000 leasing a warehouse (for one year, with more owed the following two years), and then spend a further $100,000 to renovate the space? …Ballpark soundstage rental in the Los Angeles area is $1,000 a day, plus or minus… [the total expenditure for Axanar should be in] a range of $35,000 and $70,000 total…Dropping a third of a million-dollar budget on a soundstage? That’s not professional. That’s just silliness.” ¹⁹

Because, apparently, the goal is to have a studio to produce projects beyond just Axanar. So, not only is the crowdfunding project seemingly built on false pretenses, but so is the claim that this is just an elaborate “fan fiction” project and thus entitled to the protections of fair use. Typical of the double-speak engaged in by the Axanar Producers, here is the denial on their official webpage:

“Ares Studio is the term we use to describe the warehouse we have built our sound stage to make Axanar. There is no profit being made… Axanar Productions has been paying for the building while we build sets and prepare the make the movie. Would we like to make movies after Axanar? Sure would, but that is all speculative. We don’t have any revenue from the studio and so such talk is nonsense.” ²⁰

Which is contradicted by this direct quote:

“Ares Studios – We funded and created a film studio. While not yet finished, Ares Studio will have everything needed to make movies for years to come.” ²¹

And if you need further proof of the true intentions of these so called “fair use” and “free speech” crusaders is that persons who are critical of Axanar’s ethics and legal positions have their posts on Axanar’s Facebook page deleted ²² and their ability to post on the Axanar page revoked. ²³

“Last night I commented on one of their Facebook posts saying that the probable reason that they are being sued is that they spent 250k using donor funds on a studio not related to Axanar that will be used for profit. It quickly became the top comment on that post and had 60 comments on it (it was civil discussion, nothing got out of hand.). When I want to check it a few mins ago. They had deleted the comment. Nice to know that they are willing to try and hide this information from the public.” ²⁴

Look, no one wants to sue a fan. In all my years as an attorney, I never once sent a takedown notice to a fan video on YouTube. Yet, as we see here, and in my previous blog posts on “fan fiction,” ²⁵ some supposed fans get very possessive about “their” creation and start to take positions that are not only hyper-aggressive but legally dubious, if not totally incorrect.

Because, if you started out your project by directly copying something that I wrote or created, your “new” contribution does not make it magically 100% yours. It makes it a derivative work, which I as the copyright holder have the right of exclusive control. ²⁶ Your ability to make any use of it, yes even giving it away for “free,” is wholly dependent on my permission. And further, merely typing in the words “fair use” is not some “get out of jail free” card that absolves you of any liability.

If you want to have a fan “community” around a certain artist or a certain movie or TV show, then, yes, by all means, let’s have a true community, or a

“Self-organized network of people with common agenda, cause, or interest, who collaborate by sharing ideas, information, and other resources.” ²⁷

Or as this law review article argued:

“Fan communities define themselves by reference to a copyrighted work whose rights belong to other entities. As such, they inevitably confront copyright issues regularly as a fact of their very existence.

While all fan communities do not speak with one voice, a number of recurring characteristics and attitudes have coalesced into a recognizable set of unwritten rules. These rules attempt to provide some protection of the rights of the creator of the original copyrighted work while simultaneously encouraging a flourishing creative atmosphere among the fan creators engaging with the work.” ²⁸

So, any real “community” has to start with the proposition that you do not have the absolute right to copy and alter my work. If I do allow such activities, then please respect whatever restrictions I may place on them.

Michelle Shocked placed what seemed to be very reasonable and non-burdensome restrictions on the use of her songs, only to have a “fan” take a hyper-aggressive position of “fair use” that not only ignored her wishes, but is a position totally unsupported by existing law. In light of this, her position may change, and she might not allow any fan videos on YouTube. Is that what the “community” wants?

The upshot of the whole Axanar litigation could be that Paramount/CBS clamps down and takes action against any and all Star Trek fan fiction. This is the logical conclusion of Axanar’s “waiver” and “fair use” defenses. Is that what the “community” wants?

As frustrated as I become about the misguided, misinterpreted and “what planet are they on?” legal advice regarding copyrights that float around the internet, I have to remind myself, that these people are not attorneys. Many times, people’s overarching wish to reach a desired conclusion overcomes plain meaning and common sense regarding copyrights. Just because something is widely available, or it is on the internet, does not make if free for the taking.

Fair use is not a simple concept, and there are vigorous disagreements about how far fair use goes. But be certain about one thing, just saying or typing the words “fair use” does not make it so, and claiming that your work is fair use is not a magical spell that is going to make your copyright problem go away. As a matter of fact, your wrongful and abusive claim of “fair use” may just make things worse, not just for you, but for everyone.