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YouTube is the most popular video platform in the world, but that doesn’t make it exempt from intellectual property laws Confused About Copyright Law? These Online Resources Can Help Confused About Copyright Law? These Online Resources Can Help It's a confusing subject, yes, but it's important that you wrap your head around it. If you're involved in any sort of creative work, these resources will help you do just that. Read More . In fact, with the spotlight on YouTube, it makes it even more vulnerable. This means that any video which infringes trademark or copyright laws can be removed from YouTube, often without warning.

These removals can be erroneous, impacting both the content creator and the viewer. YouTube itself is vulnerable too, having been embroiled in a legal battle against Viacom since 2007, with the media company claiming that the online video platform turned a blind eye to copyright laws during its inception. Although YouTube eventually won the case, as well as the subsequent appeals, it marked a turning point for YouTube and the videos that reside on it.

Let’s take a look at what all of this means, some examples of content claims, and how it all affects you. Because we suspect that you, like us, have found one of your favorite videos suddenly, and inexplicably, removed from YouTube. And it’s extremely annoying. So you might as well understand the reasons behind it.

Explaining Intellectual Property

Intellectual property laws are a murky business. The two that mainly apply to YouTube videos are trademark and copyright. You’ll often see these terms wrongly used interchangeably; they do have distinct and different meanings. Let’s have a look at these in a very broad way, but know that laws do vary per country and have many intricacies. Oh, and I’m no lawyer.

A trademark distinguishes your brand from a competitor Battle of the Brands: The Biggest Business Rivalries Battle of the Brands: The Biggest Business Rivalries Read More . Think a company name or logo. These can be trademarked to protect against someone else using them for their own gain or harming the reputation of your brand. A trademark can be valid indefinitely, providing it continues to be used by the owner.

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Trademark ownership depends on the context and use. You might own a trademark in one industry for a specific application, but not in another. But if I use a trademark in a way that will cause confusion as to the true source, I’m infringing.

On the other hand, copyright doesn’t have to be registered. It’s automatically granted to an author when they create an original piece of work, giving them exclusive rights to use and distribute it. For example, if I upload a video to YouTube of me singing a song I’ve written and busting some killer dance moves, I have complete copyright over that content.

cover songs

Not only would someone re-uploading that video to their own channel be guilty of infringement, even performing a cover of that song could be a copyright infringement Is Your YouTube Cover Song Legal? Is Your YouTube Cover Song Legal? A popular method for those desiring a quick-and-easy rise to stardom is by posting cover songs of popular music on YouTube. But consider this: what are the legal ramifications of covering a song? Read More . I’d need to license my song out, either for monetary returns or through an open system like Creative Commons.

Generally, copyright expires around 100 years after the author of the content dies, though that number varies depending on region. The work(s) will then enter the public domain, free for anyone to use as they wish. For example, I could film a rousing word-for-word performance of a Shakespeare play and upload this to YouTube without worrying about copyright. I won’t, but I could.

Copyright on YouTube

YouTube’s entire copyright system is based on automation. At the time of writing, more than 400 hours of video is uploaded to YouTube every single minute. That’s a staggering amount, and manually ensuring that each second of those videos abides by current copyright laws is impossible.

That’s why YouTube has a Content ID system. This pools together over 8,000 partners, including broadcasters, music labels, and film studios, and automatically scans their content against what is being uploaded to YouTube. To date, this system has helped claim over 400 million videos. Manual copyright complaints can be made, but the majority are automatic.

One of the main uses of this system is to stop people re-uploading music videos or entire films. In fact, if you were to attempt that then you’d probably find the video is blocked before it’s even published. Have you ever come across a clip from a film which is mirrored or has the audio pitched weirdly? This is the uploader trying to avoid automatic copyright detection.

YouTube’s detection system favors those claiming the infringement. If a video is claimed against, the creator will usually have a number of choices. They can accept the claim, which could mean the video is taken down entirely. Alternatively, it could mean that the claimant could fully monetize the video through advertisements.

Other options include things like muting the video or blocking the video being used on particular platforms How to Watch YouTube on Your TV Using Your Smartphone How to Watch YouTube on Your TV Using Your Smartphone Trying to navigate YouTube on your game console or Smart TV is clunky. Here's how to pair it with your smartphone for faster browsing. Read More , depending on the individual case. The claim can be disputed too, if the system has wrongly flagged the video.

The Fine Bros

Popular content creators The Fine Bros are well known for their React series on YouTube. Simply put, they sit various demographics down, get them to watch some videos, then film their reactions and ask questions Beat the Bullies! How Celebrities React to Mean Tweets Beat the Bullies! How Celebrities React to Mean Tweets Twitter isn't always a land of love and kindness; sometimes things can get nasty. So, we've compiled a list of celebrities reacting to mean tweets, thus beating bullies at their own game. Read More . These videos get millions of views. Though The Fine Bros weren’t the first to create this type of content, they definitely popularized it on YouTube. Good for them.

Come January 2016 and the pair publish a video announcing their React World initiative. Brazenly announcing their intent to “change the world”, it was an unveiling of their plans to license out the React series. Essentially, The Fine Bros were trying to put a gate around reaction videos like theirs. If you wanted to create something similar, in their eyes you’d have to join their program and share revenue with them.

In their video, the duo stress that React World would allow people to create their own reaction videos in a “legal” way. They submitted a trademark for the word “react” in entertainment contexts, along with other terms like “Kids React” and “Teens React,” back in 2015. This means that if you were to create your own video with that word or phrase in the title then you might have lawyers knocking on your virtual door.

Whether this is ethically right is questionable, but that’s irrelevant in the eyes of the law. In fact, The Fine Bros have previously shown their intent to control what they see as being their format, having called out Ellen DeGeneres and Jimmy Kimmel for supposedly ripping them off. This is despite the fact that they didn’t invent the idea of filming reactions, nor did they have the legal grounding to support it.

Going after the top dogs is one thing, but there have long been reports of The Fine Bros filing take down requests to small YouTube content creators who have their own videos with the word “react” in the title. And bear in mind that the trademark hadn’t even been approved, nor was it ever at any stage.

Legally, trademark owners have to protect their ownership. A trademark can only remain valid if it’s shown that those who registered it are shown to be protecting it. If not, the trademark could be lost.

“Escalator” and “Trampoline” used to be trademarks, but these words entered common parlance and can now be used by laymen and businesses alike. Trademarks like “Coke” and “Google” are often used generically in everyday speech, but you can be certain that the two companies will vehemently defend those trademarks until their dying day.

react trademark

The Fine Bros controversy simmered down when they announced that they’d rescinded their trademarks, abandoned the React World scheme, and would be releasing all past video takedown claims. They pulled their announcement video and swept it under the rug.

Whether this debacle will truly damage viewing figures to the React videos in the long-run is debatable, but The Fine Bros lost hundreds of thousands of subscribers and harmed their reputation.

Why Should I Care?

Good question. Why should you care, especially if you don’t find the react video genre interesting? It’s because this situation is indicative of the corporate driven nature of YouTube. Take this quote from Kelly Merryman, the Vice President of YouTube’s content partnerships, when The Fine Bros announced their plans:

“It’s no surprise that they’ve created a unique way to expand the hugely popular ‘React’ series to YouTube audiences around the globe. This is brand-building in the YouTube age – rising media companies building their brands through collaborations with creators around the world.”

There’s nothing to stop The Fine Bros attempting this again in the future, nor anyone else for that matter. YouTube favors these popular content creators because they’re the ones who bring in consistently large view counts, pulling in advertisers and solidifying YouTube’s position as a powerful entertainment platform.

Behind many of the most popular YouTube channels are networks. These affiliate with many YouTube channels to provide them assistance in a variety of areas like market research, advertising opportunities, and promotion. This is important because these networks have the resources available to protect their brands.

Some of them have people who will scour YouTube and manually detect content they believe infringes on their intellectual property, even if it isn’t a valid claim. But a lot of smaller content creators will back down, unaware of their legal standing, and allow their video to be removed.

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Combine the power that large businesses wield with the laws of intellectual property and you’re left with a situation that could mean some of your favorite YouTube videos will suddenly disappear one day, with a takedown notice all that’s left in its place.

Real Examples

Let’s take a look at some real examples of YouTube video removals and where these lie on the spectrum of intellectual property ownership.

Smosh’s Pokemon Theme Song

Smosh are one of the original YouTube stars and are still going strong to this day. Having started off as two guys mucking around in a bedroom, they’ve expanded into an empire. With multiple channels, millions of views, and support by a full production crew, Smosh are a YouTube powerhouse that continue to go from strength to strength.

Back when YouTube was still in beta, Ian Hecox and Anthony Padilla began uploading videos to the site. One of their earliest was them lip-syncing to the Pokemon theme tune. It blew up and was at one time the most-viewed video on all of YouTube, having amassed over 24 million views. Come 2007, the video was removed after a copyright claim from The Pokemon Company, making it the highest profile content claim at the time.

There’s an aspect of copyright called fair use. This grants an exception to the copyright providing that the work falls under a certain remit. This includes, but is not limited to, criticism, news reporting, and parody. It could be argued that Smosh’s video was a parody; it contained footage of them punching a Pikachu toy, hopping around like a Pokemon, and licking a Jesus figurine.

But ultimately, the determining factor of whether something is fair use lies in the hands of a judge. And it’s likely that YouTube and/or Smosh didn’t feel that it was worth their time or money to defend the video. Nevertheless, in 2010 the pair published a “revenge” video mocking the situation. With reproduced music and changed lyrics, this video clearly lies within the parody territory and sits on YouTube with over 27 million views to this day.

Let’s Play

At the end of 2015, Sony attempted to trademark the term “Let’s Play,” which created concern. “Let’s Play” is a widely used term for those who record themselves playing video games 'Let's Play' Videos: Because Watching People Play Games Is Funny & Less Time Consuming [Stuff To Watch] 'Let's Play' Videos: Because Watching People Play Games Is Funny & Less Time Consuming [Stuff To Watch] For years now people have been playing games, recording their efforts and posting the resulting videos online (often with a hilarious voice-over) for the entertainment of others. To many, and for the sake of this... Read More and the idea that Sony would have a trademark on the phrase is troubling. The trademark was initially rejected (which is very common), but not for the reason you might think; it was rejected because of a company called Let’z Play of America, who organize gaming events, that the trademark was deemed too similar.

Sony now has time to counter the rejection. While it might just be that the company wants to use the trademark for advertising purposes, in order to stop competitors like Microsoft and Nintendo using it in similar campaigns, the problem is that intent cannot be proved. In fact, should Sony gain the trademark, it would be well within its rights to order takedowns of any YouTube video that uses the phrase “Let’s Play”.

Nintendo also has a rocky relationship with Let’s Play creators. In 2013, Nintendo started taking 100 percent of the revenue from any video which included Nintendo-copyrighted content, like gameplay videos. There were also reports that videos were just being outright removed.

A few years later, this changed with the introduction of the Nintendo Creators Program. Content creators need to have their videos reviewed by Nintendo before publication. After that, 60 percent of the total advertising revenue for a video will go to Nintendo.

If it wanted to, Nintendo could file takedown requests for all these types of videos because they could infringe on the copyrights. It could be argued that video games are different to traditional media like music or film because, the majority of the time, a gameplay experience is unique to an individual. In fact, the creators behind Minecraft credit people playing their game on YouTube as a major factor in the game’s success. As such, many companies allow Let’s Plays or turn a blind eye to them; it’s often free advertising.

Channel Awesome

Though not one of the biggest channels on YouTube, Channel Awesome is growing in popularity and still boasts nearly 400,000 subscribers, which is no mean feat. It’s mainly home to the Nostalgia Critic, also known as Doug Walker, a chap who offers his thoughts on films, TV shows, and more.

Walker received email notification that some of his YouTube account’s features had been disabled, which included monetization. As someone who makes his living from YouTube, that’s something which isn’t to be taken lightly. The cause of this was a result of a copyright claim from Studio Ghibli for his review of My Neighbor Totoro.

The offending video is made entirely from clips of the film, with Walker’s voice-over offering his thoughts and opinions. This should be covered by fair use, but again that would be up to a judge to decide on. The real problem came from the fact that YouTube was entirely uncommunicative with Walker, failing to offer any human interaction on his counter claims.

Walker says he had to wait three weeks before any of this even began to be resolved. This entire situation raises a number of questions, not only on the reliability of making an income from YouTube, but also the reliability of its Content ID system and customer support.

The Curious Case of Disappearing Videos

YouTube’s system relies on automation and it’s open to abuse. If a favorite video of yours has suddenly disappeared, chances are it could be because of a content claim. Even if it’s a false claim, you may not see that video again if the uploader is unaware of their rights or unwilling to go through the dispute process.

YouTube is now offering legal support to some videos which are clearly fair use and have been taken down by an overzealous complainant. The company keep these videos live in the United States and cover costs of any lawsuits.

Although this service will only be provided for a very small number of people, it is at least a step in the right direction. However, many would argue that the entire nature of the Content ID system needs reworking, along with intellectual property laws in the digital age.

So, what do you think of the trend for taking down videos? Do you have any examples to share? Should the laws be changed to better reflect the way we’re consuming content in the digital age? Or is the onus on YouTube to better police the system it currently has in place? Please let us know your thoughts in the comments below.

Image Credits: Aaron Gustafson via Flickr

  1. Heather
    March 5, 2016 at 8:37 pm

    If I had a nickel for every video uploaded onto YouTube in just one hour of one day, properly invested and carefully handled, I could live out the rest of my days on earth without being required to do labor for my food & shelter and thus survival. But unfortunately I am just an artist and original content creator who's talent almost entirely relies on collaborating with other artists or licensing content, gaining their permission, or claiming fair use of the copyrighted content of my videos based on the fact that my audience is viewing them strictly to see my artistic interpretation of any other copyrighted work I might use as my muse at any given moment and not to listen to my audio playing in the background. I am a dancer, choreographer, actor, and theatrical performing artist which means I am possibly the epitome of legally screwed when it comes to copyright laws because technically if it's not my camera and is a public performance I don't own it, and if it is my camera because I'm smart.. but there's any sound whatsoever picked up on my video footage like a 20 year old Depeche Mode song on the radio of my next door neighbor's house, some huge ass media conglomerate corporation (and not the band btw) automatically is set up to receive my $ buck and some change each month if I don't want to or can't afford to pay my legal fees in court. Actually it pivots on the likelihood that I'm too dumb or scared to know that my choreography or expressed opinion and therefore authored statement to which I'm free to publish and distribute for profit all I'd like provided there is a demand for it and simply not contest it and allow them to take all the revenue just feeling lucky my YouTube account isn't in jeopardy because that would be embarrassing and if I lost my gmail or something I'd cease to exist entirely and die from starvation or my lack of social media attention ~ *omg the horror!!? Heh

    THE SYSTEM IS BEYOND BROKEN.. AND WE HAVE A HELL OF A CLASS ACTION SUIT FOR RETURN OF OUR AD REVENUE actually.... Depeche Mode song 20 years old? Are they alive still? I agree after 20 years it should be public domain for public use without distribution rights (manufacturing and selling copies on a cd rebranded as nostalgia). Even "top secret" military classification expires after 50 years and despite the origin of any pop culture icon it eventually becomes the public's reaction to it more than it ever was any kind of copyright-able content no matter how much was spent on the making of it! IT'S A MEME.

  2. Riley J. Dennis
    February 25, 2016 at 4:21 pm

    that's crazyyyyyy, this is a super interesting look at it all though. i can't believe how much youtube now favors whoever's making a copyright claim, and i love that the internet reacted (hehe) so strongly to the Fine Bros announcement and got them to go back on it.

    but i feel like we need some sort of change in copyright law to bring us into the 21st century. we're really trying to enforce ancient-style laws on internet videos and it's not working. people upload covers without permission all the time, and let's play videos are a perfect of example of something Nintendo, or any other game maker, shouldn't be able to get money from.

  3. A41202813GMAIL ..
    February 24, 2016 at 4:08 am

    Stupid First World Problems.

    Trademarks Apart, Copyrights And Patents Should Be Public Domain 5 Years After The First Sale - No Exceptions Whatsoever.

    The Creators Would Have 5 Years To Create Something Else, If They Wanted To Continue To Milk The Fat Cow.

    I Will Not Hold My Breath, Though.

    Cheers.

  4. bben
    February 22, 2016 at 1:16 pm

    The You tube take down policy is extremely biased in favor of the HUGE media companies and against the small content creators. And the auto take down is insane. It allows a video to be taken down if just one word in the title of a small time uploader matches a word in a popular movie. With absolutely no oversite from YT at all. This allows the biggies to actually claim totally unrelated small videos and profit from someone elses work. The Biggies have an army of lawyers that work full time at this - while a single small time uploader has NO recourse unless they want to go against that army.

    Then there are the rip off artists that steal other small time uploaders work, often from other sites where there is no monitization. Then upload the other person's work on YT for the money it will bring in - a Cheap way of making money from other people's work. YT will take them down - BUT only after a few days and the original creator having to supply proof that is not required from the big companies. But the thief still made money while it was up.

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