YouTube
and Copyright
The
following is not legal advice and you should consult a lawyer for
that. It's simply this site setting out some of
the issues surrounding YouTube and copyright, as we perceive them
and using The Smallville Twist as an example.
Table of Contents
1.
The
Main Issue
2.
The
Exemptions
3.
The
Gray Areas
4.
The
Typical Case
5.
The
"How To" Issue
6.
The
Smallville Twist Files
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1.
The Main Issue
Some
may not care, but it should be understandable why the studios
that spend tens of millions of dollars every season to produce a TV show
like Smallville are going to want to protect that investment and not
have people ripping them off. Check out the YouTube copyright policy at:
http://www.youtube.com/t/help_content
And
you'll see that they don't want that either.
Basically, if the studio asks for something to be taken down,
it's almost certainly going to be.
YouTube's
"Broadcast Yourself" theme is a new phenomenon, at least on
the scale it's being attempted. It may well be that the
technology, from broadband to video editing software, has just about now
reached the stage where it could happen as it has. Among the many
implications, fandom and fandom creativity might become a bigger factor
in promoting shows,
movies and the like. George
Lucas seems to get it based on some comments he's made and hopefully the
studios will too once they understand it better and are more comfortable
with being able to defend against the rip-off element.
So
the potential here is significant, but the general rule -- and the Main Issue as far as this site
and page are concerned
-- is "Respect Copyright" so that a great opportunity doesn't
turn into another Napster.
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2.
The Exemptions
There
are fair use exemptions, and in some cases public domain arguments that
might hold up in court and wouldn't require permission. These include
commentary and parody (both fair use), and news (which can have a public
domain element, e.g., public speeches of politicians aren't copyright to
start with). But these
exemptions are a complex area of law and there are limitations.
Moreover, few if anyone, beyond advocacy groups, want to be legal
guinea pigs in challenging this kind of thing.
Ideally,
the studios should adopt more specific policies that people understand,
with respect to (i) when they're going to just look the other way and
not try to enforce, (ii) what beyond that they might consider granting
permission for and who to contact for that (this has to be a very
limited category because they aren't going to want a huge bureaucracy
processing permission requests) and (iii) what they're going to fight
tooth and nail like the stuff described in #1 above.
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3. The
Gray Areas
The
gray area right now, the one where the studios might not want to look
the other way but at the same time might want to grant permission where
there's creative merit and benefit, may include people making
music videos. YouTube took
down one fellow's Smallville Music Video in late July, one that we
would rather they not have because it was very good promotion for the
show. But in fairness, except for a few
second dialogue clip intro by Jonathan Kent, it was strictly a
Smallville action video montage with a great decade-old song by the Foo
Fighters titled My Hero running over it.
So it had that song in its entirety, over 4 minutes long, running
over the action clips. It's a bit more difficult (but not impossible) to argue a
fair use "commentary" exemption in a case like that.
Still, it was good promotion for the show and Warner Bros. presumably
wants that.
With
The Smallville Twist or videos that advocate the Clark-Chloe twist or
relationship, and which do other things to try to address the copyright
issue, there may be a stronger case.
Warner Bros. may perceive a difference there and so might a
court. For example with The
Smallville Twist we put up this web site's URL at the end of the video.
And here we address the copyright issue, state our intent, the
non-profit nature of it, and that for greater certainty we're in the
process of trying to get permission from the four copyright sources
whose material the video uses.
Two
of those sources - the versions of (i) The Twist and (ii) Twist and
Shout that were used - came from two different CDs compilations produced by the same company.
We contacted them in July and they indicated they were licensed
to use the master recordings but couldn't grant sub-permissions; however
they forwarded the request to someone else who may represent the rights
holders or be able to put us in touch with them. We've also done additional checking on the original labels for these songs, which
were circa late 1950s or early 1960s.
The
Hank Ballard version of The Twist - he was also the original writer of
it -- is the version excerpted at the beginning of The Smallville Twist.
Ballard is now deceased but we'll keep pursuing it and hopefully
get to the rights holders to ask for permission.
The Twist and Shout version is by Brian Poole and his band, whose
main claim to fame may be that they were signed by record label Decca
instead of The Beatles, who legend has it auditioned for Decca on the
same day. Some other info
on Twist and Shout can be found at :
http://en.wikipedia.org/wiki/Twist_and_Shout
For
The Smallville Twist, your
writer and webmaster here chose the Poole version instead of The Beatles one
(and also Ballard's instead of Chubby Checker's) for two reasons.
The first is that more famous versions (Lennon's vocals
or Checker's, as well as those renditions musically) would tend to
overshadow The Smallville Twist's story within the song.
The second is that excerpting The Beatles would more likely draw
copyright fire from whoever owns those rights, and/or they might want a
fortune for them if hypothetically Warner Bros. becomes involved, wants
to use the video and is willing to negotiate a fee. With lesser-known versions there's perhaps more potential
synergy and benefit
to the rights holders of those. Their versions don't get much play
or have much in the way of sales, so the publicity might be more welcome
and we are advocating a non-profit and possibly for charity approach here.
The
other two copyrighted elements are the Smallville DVD footage and the
segment of the Smallville Title Theme "Save Me" by Remy
Zero. We've contacted two or three different Warner Bros. email
addresses to either ask for permission or get information on who to
contact, and we'll keep following up. We'd
certainly like to have this issue addressed before the end of August and
will update the site with any progress we make.
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4.
The Typical Case
Let's
stipulate that the vast majority of those uploading videos on YouTube
aren't going to go through the analyzing or hoops described in the last section.
We're trying to because we're interested in the issue generally, online
fandom, Superman and of course Smallville.
We'd like to see the show get some good promotion in the lead-up
to its September 28 premiere and believe The Smallville Twist and
related efforts can do that in a major way. But there isn't much
time to get that going.
Nobody's paying much attention in August but after Labor Day
would be a great time to be generating buzz for the show.
The
Smallville Twist is not the typical case though. Most people just want to make and post their fan videos on YouTube.
If they had some guidelines along the lines of that last
paragraph in the #2 "Exemptions" section above, that might be
the biggest help so hopefully we'll have that at some point.
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5.
The "How To" Issue
Some
have enquired about how to make a video like The Smallville Twist.
There's
copyright protection built in to the DVDs and there's no good way we
know of to directly overcome that.
Even if we did know of a way we wouldn't explain how.
In the US, under their latest copyright law, any package that
even attempts to thwart the copyright protection may be illegal.
We're in Canada and we're not sure if it'd be illegal here or in what
parts of the world it would or wouldn't be, but in any case that
technology is very rip-off oriented and we wouldn't be interested in
helping anyone do it.
People who want to make hundreds or thousands of copies of bogus
DVD sets would try to bypass the copyright protection by using something
like that, or otherwise try to get hold of unauthorized, unprotected
versions.
Most
of the rest of us, if you want to at least have a leg to stand on when
it comes to defending fan-produced material, would for starters actually
have genuine authorized originals.
In our case we have the two songs on CDs, the first four seasons
on DVD, and some season 5 episodes on PVR (the latter footage has the WB watermark logo in the lower right;
in most if not all cases it was from a Smallville airing by WPIX in New York, which is
available on cable in the Toronto area).
Once
you have authorized
versions, the conceptual approach is to basically
record the clips you want for your creation -- the commentary or parody
or fan video that you're implicitly taking the position is fair use.
Record it on what? Well in the old days it would be your VCR;
nowadays it's a computer with a PVR card or video capture card.
Those don't directly overcome copyright protection, they record a TV
show in real time for later personal viewing, like a VCR has done
for 25 years now in principle, or they allow you to play and
transfer versions you legitimately have from one format to another for
personal use.
So
our approach was basically to
play the DVD or
the PVR in real time, recording or capturing the clips we wanted for
this fair use commentary (and hopefully good buzz and promotion for the
show) . Then we used video editing software to put the video together
including various transition effects and so on that software packages have.
We're not
recommending any specific hardware or software but you can research that
online or ask your retailer or other specialist.
The
result in our case is that we have The Smallville Twist in DVD
standard quality or close to it, which is MPEG-2 in 720x480 pixels and
at 29.97 frames per second. We
wouldn't upload the higher quality version to YouTube or anywhere else, because we don't want to
undermine possible sales of it if Warner Bros. were to adopt it or do a
charity project or whatever. YouTube's
100MB limit also works against being able to upload too high a quality,
except for very short clips or unless you do it in separate parts. So
we uploaded a slightly less than half-size version of the 720x480
MPEG-2, specifically a 336x224 MPEG-2.
The Smallville Twist is 3m 48s, and that size file at that
resolution came in at 87.95 megabytes, i.e. under YouTube's 100 MB
limit. The quality is less
than half as good as the original we have, but it still looks and plays
well enough after YouTube's conversion to Adobe Flash (which is what
they use to stream it).
So
that's the technical stuff and if it seems like a lot of work it
is. It shouldn't be as easy as hacking copyright protection and
duplicating DVDs, which is illegal and adds nothing creatively or
otherwise.
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6.
The Smallville Twist Files
This
is not a music video. It's
basically designed as a clip-based double-episode of Smallville that
mainly conveys and advocates the Clark-Chloe twist on the story, but
also attempts to feature other elements of the show in the
process. We may try to do a single episode (43 minute) version,
but it's up to about 65 minutes now and we haven't got everything we
want in there yet.
We may begin posting the first part of
The Smallville Twist Files on
YouTube in segments later this month, ideally after getting permission
in advance for that. But right now we're focusing on The
Smallville Twist video and related issues. Again, we'll update this page
when we have more to report (any updates will appear at the top of the
page, so you needn't read this entire section again).
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