Posted on 13 March 2015.
Discovery Channel is at it again. This time they’ve targeted two of our videos and taken them down.
This is the fourth time they or one of their affiliates have targeted our video “How Hot Dogs are REALLY Made” and the first time they’ve targeted “How Chicken Nuggets are REALLY Made“.
They are committing fraud, plain and simple.
When the hot dog video first went online, they filed a claim to assume all ad revenue. At first, I let it slide because I didn’t know better. For the vast majority of the life of this video, Discovery Channel kept every penny of revenue.
Months later came a very nasty take down notice from their partners in Canada. They didn’t just want the money, they wanted it gone, going as far as to write a custom (non-form) letter describing it as “disgusting”. I’d had enough so I did my research and fought them.
The law firm in Quebec immediately backed down knowing they had no standing. I also contested the “Matched 3rd Party Content” claim from Discovery and had that reversed as well.
Last month, without any notice, Discovery filed another claim instantly taking all my ad revenue without so much as a notice. It wasn’t until I looked into my stats that I even saw it. I immediately contested it and a few days later, it was reversed. The money was still gone from that time, of course, but that’s just how YouTube protects its dying-media partners.
On this one, it wasn’t so much as a new claim, but the exact same claim one second later in the video.
Yesterday I went to look at my stats and found that Discovery had filed two new claims against my videos. Not content with taking all the money (since I’d stopped them twice before) they simply had the videos removed.
These are two of my biggest videos we’re talking about. About 150 people see them every day, but not now. Not until YouTube or Discovery Network admit, once again, that these fall under the Fair Use doctrine.
Fair Use Doctrine Explained
According to this document from Stanford, “Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.”
A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original.
In the case of both videos, they were not simply taken as a whole and republished. They substantially borrowed from, but substantially provided commentary on both processes outlined.
The Transformative Factor: The Purpose and Character of Your Use
In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:
– Has the material you have taken from the original work been transformed by adding new expression or meaning?
– Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
In a parody, for example, the parodist transforms the original by holding it up to ridicule.
Are the works transformative? You bet your ass. New expression and meaning is the entire point my videos. New information is literally what’s created.
The Effect of the Use Upon the Potential Market
Another important fair use factor is whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work… Again, parody is given a slightly different fair use analysis with regard to the impact on the market. It’s possible that a parody may diminish or even destroy the market value of the original work. That is, the parody may be so good that the public can never take the original work seriously again. Although this may cause a loss of income, it’s not the same type of loss as when an infringer merely appropriates the work. As one judge explained, “The economic effect of a parody with which we are concerned is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it fulfills the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).)
There are two important things here. First of all, the actual “How It’s Made: Hot Dogs” videos have over 60 million views. Mind has under 70,000. To argue it’s diminishing their income is laughable, but the second point is more compelling.
It doesn’t matter if I actual could diminish their work because mine is very abundantly clearly a parody. There are a few scattered comments who don’t get it, but every one of those are what judges could call a moron in a hurry.
(Example of) Fair Use. A pro-life video organization created two anti-abortion videos by borrowing video clips from a pro-choice video and juxtaposing them with actual abortion footage.
That means that even if they don’t find it funny, being transformative in parody is sufficient grounds.
What’s next with this?
I’m fighting this to the death. If they want to suggest short-of-court arrangements I’m happy to listen, but they’ve been nothing but a monumental pain in my ass and I have zero doubt I will prevail.
I haven’t used any of their footage in my newer videos about hot things are REALLY made because even though I have the right to, I have no desire to bring further attention and profit to their programming. But these two videos? Sorry guys, they’re not going anywhere.
If they want to sue me, I’ll appear and fight to the bitter end… and win… with a judgment for my costs. If they back down but continue to harass me I will file suit against them. Once or twice I can understand, but this is my fourth and fifth time dealing with them.
This isn’t a mistake, it’s standard operating procedure. It’s millionaires and billionaires fighting me for my nickel. As a matter of principal I just can’t let it go.
Bruce Campbell (no relation to the cool one, I believe,) is Discovery Network’s Chief Development & Digital Media Officer and General Counsel, which includes “all legal affairs”.
I highly doubt he knows what’s being done in his name, but I’ll leave it to you readers to decide if that’s me being serious or satirical. If he doesn’t, he needs to fix this. If he does, he needs to explain it.
Harassing, needling and nickel and diming a two-bit media guy like me isn’t just a waste of resource, it’s a lot like shaking a beehive. Well, it would be if beehives had time on their hands and a passion for righting wrongs against them and the ability to do something about it. So I guess I’m more like, well, an actual beehive.