AGAIN?!? YouTube yanks my Star Wars fan film for "copyright" dispute

Oh geez...

Many of you remember a little over a year ago when YouTube yanked the clip I had posted of VH1's Web Junk 2.0 that made use of my my first school board commercial.

Well, this morning I got another "Video Disabled" e-mail from YouTube.

This time, it's about Forcery, the parody of Misery - about George Lucas being held captive by an overly-obsessed Star Wars fan - that we shot in 2004. Forcery was released in 2005 and I posted it on YouTube the following year, so it's already been on YouTube for about three years now.

If you've seen Forcery, then you know that when Lucas (played by lifelong friend Chad Austin) is driving back to California after writing the script for Star Wars Episode III, he turns on the radio and finds himself listening to the classic song "A Horse with No Name" by America. And the song plays on through when he loses control of his car and crashes in the blizzard, only to be later rescued by his "number one fan" Frannie (Melody Hallman Daniel).

Well, somebody has a problem with "A Horse with No Name" being in Forcery and this morning the following e-mail arrived from YouTube...

Dear kwerky,

Video Disabled

A copyright owner has claimed it owns some or all of the audio content in your video FORCERY - Part 1 of 7. The audio content identified in your video is A Horse with No Name by America. We regret to inform you that your video has been blocked from playback due to a music rights issue.

Replace Your Audio with AudioSwap

Don't worry, we have plenty of music available for your use. Please visit our AudioSwap library to learn how you can easily replace the audio in your video with any track from our growing library of fully licensed songs.

Other Options

If you think there's been a mistake, or you have other questions, please visit the Copyright Notice page in your account.

Sincerely,
The YouTube Content Identification Team

Here are some of the reasons why I find this removal to be particularly silly...

1. No one made any money from Forcery. I certainly have not. You have to be a little nuts to make a movie for the first time, not knowing what you are doing and "learning along the way", realizing fully well that you can not see a dime of profit from it. Forcery was a labor of love, and we all had a wonderful experience making it and if I had to go through it again knowing that it couldn't make money, I absolutely would. If anything I lost a few thousand dollars.

2. The complete song of "A Horse with No Name" isn't fully employed by the film, and the vast majority of the time that it's playing, George Lucas is speaking on his cellphone to his producer Rick McCallum. The song has faded into the background and then comes blaring back for dramatic effect when Lucas has his "I've got a very bad feeling about this!" moment. It's not like anyone can make any quality MP3 rip of the song from this clip.

3. As with every song and bit of music that is used in Forcery, I gave attribution for "A Horse with No Name" to musicians (they being the band America) in the end credits. That is something that I have done from the beginning and have always done. It is not at all like I used the song and pretended that I whipped it out of my hat.

4. Forcery could be categorized as a "Star Wars fan film". And the vast majority of fan films - from any milieu out there - use copyrighted elements of some form, be it music or something else. If Forcery has to get yanked because of this, then I would imagine that most other fan films on YouTube and elsewhere are likewise in jeopardy.

5. Come to think of it, the same can be said for most of the other stuff on YouTube as well. Including all of those cute video "mash-ups" using puppies, the Sesame Street Muppets, etc.

So is the rest of Forcery going to also be pulled from YouTube because I used a bunch of Slim Whitman songs?

I'm inclined to laugh about it though 'cuz there's some irony given the timing of this development. And just last night on the phone Chad and I were talking about Forcery and now, well... I guess he's going to have to put up with being in the limelight a little bit more for his terrific portrayal of George Lucas.

Right now I'm mulling it over about what should be done about this. But in the meantime, you can still watch Forcery if you like, in a variety of sizes of Quicktime video. I'll be the first to admit that it's a bit rough around the edges, but a lot of people have called it "hilarious", "whacked" and "like a Troma film but with less violence". So if you feel so led to watch it, enjoy! :-)

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Viacom v. Knight at the Citizen Media Law Project

A few days ago was the one year anniversary of that very strange situation between multi-billion dollar multimedia conglomerate Viacom (owner of CBS, Paramount, Comedy Central and many other brands) and Yours Truly. If you're fairly new to this joint here's my first post about what happened and here's the list of all the news articles that I could find about it. Long story short: that wacky first TV commercial that I made for my 2006 school board campaign was broadcast on VH1's Web Junk 2.0, which even though neither VH1 or its parent company Viacom asked for permission I was still fine with it, 'cuz I thought it was pretty hilarious.

Anyway, I posted the short clip of my commercial on Web Junk 2.0 on YouTube, 'cuz I was so proud of it and that Rockingham County, North Carolina got such a shout-out. A month and a half later YouTube yanked the clip at the demand of Viacom 'cuz... get this... Viacom claimed that I was violating their copyright! Well, I filed a protest and the whole thing got some notice, and two weeks later Viacom acquiesced and the clip was restored. Here's the clip that caused so much trouble, including very many less-than-polite comments aimed at Viacom made by other YouTube users, which for reasons that shall be left to myself, I am not choosing to delete.

A few months ago Jim Ernstmeyer wrote me. He's at Harvard Law School and is involved with the Citizen Media Law Project. It aims to be a very extensive database of law pertaining to ordinary folks who - willingly or no - find themselves on the front lines of copyright litigation. The centerpiece of the project is the Legal Threats Database. Ernstmeyer asked for some information about what happened between me and Viacom, which I was more than happy to oblige him with.

And now, Viacom v. Knight is an entry at the Citizen Media Law Project! Which kinda officially makes it legal history. The entire site is well worth checking out for anyone with an academic interest in digital copyright or (like me, unfortunately) comes under the gun of bigtime corporate legal action.

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Viacom hits me with copyright infringement for posting on YouTube a video that Viacom made by infringing on my own copyright!

UPDATE 09-12-2007 12:29 am EST: YouTube has restored the clip

"Chutzpah" is a Yiddish word meaning "unbelievable gall or audacity". An example of it would be the story of the kid who murders both of his parents, then throws himself on the mercy of the court on the grounds that he’s an orphan.

That's chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it's VH1 show Web Junk 2.0... which VH1 produced – without permission – from a video that I had originally created.

Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!

The clip in question was pulled by YouTube earlier this morning, at Viacom's insistence.

Last fall, as part of my campaign for Rockingham County Board of Education, I produced three commercials that ran on local television. The first of them – which I simply dubbed "Christopher Knight for School Board TV Commercial #1" – was hosted on YouTube the same evening that the ad started running on WGSR in Reidsville. You can watch it at http://youtube.com/watch?v=nLi5B0Iefsk.

Well, the concept of a candidate for Board of Education pitching himself by using the Death Star to blow up a little red schoolhouse is admittedly unusual. The YouTube clip got around quite a bit: as of this writing it's received over sixty-six thousand views. I put it and the other two ads on YouTube so that I could post them on this blog (because I was trying to chronicle everything that happened during the course of my campaign). And I'd always intended to keep them up after the election too, in case anyone else might find and enjoy watching them. Heck, I've always liked to think that maybe someday, others might see how I was a candidate and feel led to run for office themselves!

A month and a half ago some friends let me know that the cable network VH1 was spotlighting the commercial on their show Web Junk 2.0, in an edition titled "Animals & Other Crap".

VH1 took the video that I had created and hosted on YouTube, and made it into a segment of Web Junk 2.0. Without my originally-created content to work with, VH1 would not have had this segment at all. They based this segment of Web Junk 2.0 entirely on the fruit of my own labor.

I got to catch the episode and was laughing pretty hard not just at host Aries Spears's witty commentary about my commercial, but that VH1 had found the commercial worthy of sharing with such a vast audience.

Please bear in mind that at no time prior to the broadcast of this show was I contacted by VH1 or its parent company Viacom. At this time, I've received no communication from Viacom whatsoever about this.

I was quite aware that they were using my own not-for-profit work for commercial purposes and that they should have contacted me. But I didn't really care that they were doing that, either. It was just nice to see something that I had worked on getting seen and appreciated by a lot more people than what I had intended for a local audience. And I was glad that Melody Hallman Daniel, the voice-over actress in the spot, received some widespread notice of her considerable talent.

I was so proud that my commercial had been highlighted on Web Junk 2.0 that I posted the segment featuring it on YouTube so that I could put it on this blog, just like I'd posted the original commercial.

Did I think about the issue of copyright when I did that? Of course I did! But if this wasn't a matter of Fair Use, then I don't know how anything else would qualify it as such either. I made the original video, VH1 used it without my permission and I didn't particularly have a problem with that. I thought that they would have readily understood that were it not for my creativity and effort, that this edition of Web Junk 2.0 would have had to find some material elsewhere.

And then this morning the following e-mail arrives from YouTube:

Dear Member:
This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing:

Web Junk 2.0 on VH1 features my school board commercial!:
http://www.youtube.com/watch?v=ddyVQwpByug

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, please go to our Help Center to access the instructions.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

Sincerely,
YouTube, Inc.

So Viacom took a video that I had made for non-profit purposes and without trying to acquire my permission, used it in a for-profit broadcast. And then when I made a YouTube clip of what they did with my material, they charged me with copyright infringement and had YouTube pull the clip.

Folks, this is, as we say down here in the south, "bass-ackwards".

I have written to YouTube's division of copyright enforcement, telling them that the VH1 clip is derived from my own work and that I should be entitled to use it as such. So far I haven't heard anything back from them. After reading that last part of the initial e-mail that they sent me, I'm wondering how apt they might be to use the Digital Millennium Copyright Act to wipe out the accounts of anyone who even raises such a fuss about something like this, no matter how well-grounded it is.

What does this mean for independent producers of content, if material they create can be co-opted by a giant corporation without permission or apology or compensation? When in fact, said corporations can take punitive action against you for using material that you created on your own?

That's what's happening to me right now, folks. Viacom is penalizing me for using my own original material, which they used without permission to begin with.

I would really like to fight this as hard as I can. Unfortunately at the moment I lack the time and resources to do this on my own. I am also, admittedly, not an attorney. There's a good bit of knowledge of copyright law floating around in my gray matter, but it's not nearly enough to mount the challenge that I would like to levy against Viacom for doing this.

I want to publicly declare this: that I am not out for any money. Not a single penny. All I want is for the clip to be restored to its original address on YouTube. And I want it to be established that other creators of content have a right under Fair Use to show how their works are being appreciated in the wider world. I just want the rest of us who aren't affiliated with corporate media to have as much right to use our own work as "the big boys" enjoy for theirs.

Any inquiries or suggestions or anything else pertaining to the matter can be directed to me at theknightshift@gmail.com.

EDIT 8:22 p.m. EST: Want to see the forbidden video clip of Web Junk 2.0 using my TV commercial? Mash down here, grasshoppah! Special thanks to Richard Moore for hosting it!

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