[YMS] *sigh* Now, I'm the type of person that tries
pretty hard to stay out of YouTube drama. But, alas, it seems as though I've been
thrust into it by association. Now, recently Derek Savage has issued
several takedown notices against reviews of his film "Coolcat Saves The Kids." After
facing some heat for it he has now posted a video defending those takedowns,
saying that those videos weren't actually Fair Use at all. It is because
of this video that I am now making a video instead of having this
conversation over email: because, Derek, you're absolutely right that there's a
lot of misinformation about copyright and Fair Use. So in a calm and civilized
manner, without attacking your character, I'm making this video to help you and
everybody else understand exactly what Fair Use is. Now in the video you posted,
you made the following statement: [Derek] There is so many lies and just
"misinformation" on the internet about copyright infringement and Fair Use. And
I want to clarify the difference between copyright infringement and Fair Use.
[YMS] But unfortunately the video showed no such distinction. Instead, you just
showed examples where defendants have claimed Fair Use, without actually winning
the case. You made no effort to explain why those cases weren't Fair Use, and you
made no effort to explain what would have made them Fair Use. Your position is
that using portions of copyrighted materials in your own work, and then
monetizing that same work is copyright infringement. The examples that you
provided as previous case law were in fact copyright infringement. Despite
claiming Fair Use, the defendants did not meet the qualifications required to be
considered Fair Use. However, the reviews that you issued takedown notices against,
and even this video, do fall under Fair Use and I will explain it and thorough
detail with factual evidence. Now when you say that you shouldn't believe
everything you hear on the internet, I completely agree with you. Which is why
my understanding of Fair Use is not based off of youtube comments or random
articles, they are based off of actual legal documents being interpreted by legal
professionals. Fair Use is not just a magical word that people use to try and
get out of copyright infringement, Fair Use is a very real exemption to
copyright infringement laws. Key word here being "exemption." Fair Use dictates
that, as long as certain qualifying factors are met, you do not need permission
from the copyright holder to be able to use, publish and, yes, monetize portions of
their works in your own. After watching through your entire video twice, you did
not offer any explanation as to what these copyright infringers could have
done to fall under Fair Use. As someone whose entire business relies on Fair Use
law, I am happy to explain them for you. [Derek] Rogers took this picture, Koons
ripped him off and made some statues right here, you know, a- and he sold them.
Once again, monetizing. Trying to make commercial profit off
somebody else's work is a major no-no. You can not monetize YouTube videos, or any
of that crap. Remember that, that is law. It will get you in a lot of trouble, and
you're a scumbag to do it, cause you're ripping somebody off.
[YMS] All right, now I'm going to ignore the fact that you just inadvertently called
me a scumbag. What needs to be addressed is that although monetization and
commercial purposes for the work is considered, it is not a determining factor.
I do not believe for a second that you would be okay with someone illegally
downloading the Cool Cat movie, as long as they weren't selling it
afterwards. Monetization or selling does not determine guilt, and it does not
determine innocence. And if you don't believe me, just ask Julie Arens: lawyer
and associate director for the Fair Use project, in a video posted by
Stanford University's Center for Internet and Society.
[Julie] I'm here to talk about some common myths regarding Fair Use, and one of, mh,
the common beliefs about Fair Use is that, if you are making money or attempting to
make money by, uh, using something, that that is not a Fair Use. Or, if you're
not making f- money off of it, then it automatically is a Fair Use. This isn't a
true distinction. While whether something is commercial, or non-commercial, is one of
the factors that goes into deciding whether a use is fair or not, it is not a
determinative factor. So, you can be doing something to make
money, whether it's, uhm, off of ad revenue or otherwise, that can be a fair use, many
commercial enterprises rely on Fair Use every day. There are other, uh, uses that
are non-commercial, that are not Fair Use, and, uhm, so the distinction between making
money or not making money does not, uh, decide the question of whether
a use is fair, or not. [YMS] And if you still want to go by case
law, let's take for example when South Park parodied a popular song for their show.
[Derek] When it comes to law, there's one thing you go by, and it's called case law:
previous cases. [YMS] The original owner filed a lawsuit
against them, but South Park won, because of Fair Use law. One of the most essential
Fair Use provisions is parody law. So because South Park's use was both
transformative, and provided commentary on the original by poking fun at it, it was
considered a clear example of Fair Use. They used portions of the original material to create something transformative, that
provided commentary on the original. And because of that, they are not legally
required to ask permission of the copyright holder, and they are not
legally required to compensate the copyright holder. The example used in your
video is a clear example of copyright infringement, as it makes no attempt to
comment, or poke fun at the original. [Anthony] Parodies received relatively
strong protection under Fair Use. One of the reasons is because a parody is
fundamentally a criticism of the original, and ... cases right up to the
Supreme Court have provided relatively strong and broad protection for parodies.
Parody is something that holds the original up to ridicule. You have to be saying
something about the original; presumably something negative, or at least critical
about the original. By definition, if you are parodying a visual work, you are
probably going to use a portion of that visual work, so to answer your question:
yes if you're parodying, uh, an audiovisual work, then sure, uh, all things being
equal, Fair Use of probably give you a fair amount of leeway to use the material
from that work. [Impersonation of Cool Cat] Woah, cool!
"Cool Cat Saves The Kids" is my favorite movie! Haha, Woo! Now rememder, kids,
bullying is wrong! Ooh! [Anthony] Remember, a parody doesn't have
to be funny, it doesn't have to be successful, uhm, it may not even make any
sense, but it has to target the original with some form of critique or ridicule. So,
to get back to your question: if the subject of your parody is a cartoon, or a
video game, then presumably you're going to have to use, uhm, a fair amount of that
cartoon or that video game to make your parody. So yes, in general, Fair Use will
probably give you a relatively broad latitude to borrow from the original there.
[YMS] If the designer of the statue had given them punk rock
mohawks, and maybe had them holding a pile of big macs
instead of puppies,then it would be considered Fair Use. The most important
factor when determining Fair Use is whether or not it's transformative, and
serves a different purpose from the original. A review for your film, using
clips from your film, in order to help illustrate the points being made about
your film serves an entirely different purpose than the film itself, whereas
something like this statue is infringing upon potential markets,
typically reserved for the copyright holder. The copyright holder of the
original image has every right to use that image as a design for a statue, so if
someone else makes that statue in a completely non-parodying and
non-transformative way, then they are infringing upon their market.
[Julie] Using copyrighted material in a review is a classic case of Fair Use, and
so using a clip or, uhm, portions of the copyrighted material in order to present
your review of the- of a film, that is something that i- is very likely to be
found a Fair Use. You're using it for a very different purpose than the original,
you're commenting on it, and you might be criticizing it. So in answer to your- the
second part of the question: it doesn't even matter if you're promoting the film,
you could be criticizing the film and saying that it's terrible and using clips
to support that argument, and that would still be a fair use. Also, uhm, and if- if
you were doing the review for a commercial purpose and were making money, that also
wouldn't be a determining factor. So, reviews and using the copyrighted
material to support that review, that's a classic, uh, use that is often considered
a fair use. [Derek] Bottom line, even when it comes to
water bottles: if you look at movies; I took the label this. Cause I don't want any
problems. you can- I mean you can get busted for doing that right there:
having- showing bottles, if you're trying to make
a profit off of it. This video here's not gonna be monetized
i- in a bit. So, you know, but you don't- I even did that. You got to be that careful
in today's world, people. [YMS] Well, unfortunately, Julie Ahrens has
already explained that monetization is not a determining factor. So by your logic,
does JVC have the right to take down your video just because you're showing their
copyrighted logo? Yes, it is a standard precaution to remove all labels and brand
names in films, but it is not a determining factor. Obviously, if there is some sort of
parody or commentary being made about the brand being featured, then it is a
clear case of Fair Use. [Randy] Our town has only had a
Whole Foods for three weeks, and we already have our first gay kids. So cool. [YMS] Otherwise, that standard precaution
is usually taken out of fear that brand names will sue for defamation. Louis
Vuitton sued The Hangover 2 for this joke: [Alan] Careful, that is a Louis Vui-
that is a Louis Vuitton! [YMS] Their claim was that the film would
trick audience members into believing that the chinese knockoff was an actual
one of their products. But, considering the context,
that the characters a moron anyway, the courts dismissed the
allegations as being not plausible. The Hangover 2 was a multi-million dollar
production, so people and companies are naturally going to try and pursue
lawsuits for any variety of reasons. Generally speaking, incidental brand-name
appearances in YouTube videos is not really something that anybody has to worry
about. Otherwise I'd worry about getting a lawsuit from JVC, as they
probably don't want their brand name being associated with misinformation on
copyright. What's more important than JVC, however, is the bloggerwebsite you
featured in your video, "99designs." You see that thing at the bottom of the
page that says "© 99designs?" You know that the page you're showing us in your
YouTube video is protected by copyright law, right? So is your position, that
99designs owns your video now? Or maybe you think you're in the clear because you're
not monetizing the video or using it for commercial purposes.
[Derek] It is *the* anti bullying and kids gun safety movie.
[YMS] Or using it for commercial purposes. [Derek] Get your own copy of the movie,
it's only $9.99, my god, you could afford that. Get your own copy of the movie an-
and see how entertaining and enjoyable this film is. Bottom line, my word to you, my
guarantee to you: you never seen nothing like the "Cool Cat Saves The Kids" film,
I guarantee that. [YMS] Oh, what was that, Derek? If
you're using portions of copyrighted material in your video, that
you intend to make money on, then it's copyright infringement? Lucky for you,
that's not how it works. Just like those reviews you took down are Fair Use, your
video is also Fair Use. You are ironically exercising Fair Use, in order
to spread misinformation about Fair Use. How do you think the website is able to
show you the pictures they're talking about, Derek? They're advertising their
design services on the same page, and making money off of it, so according to
you, that's illegal, right? According to you, you are promoting a website, that is
actively participating in copyright infringement, while you simultaneously
denounce copyright infringement. How do you think you're able to show us the
pictures, that the website is talking about? Did you get permission from
99designs, Art Rogers, Mannie Garcia and Patrick Cariou to make this video?
This video that you are using for commercial purposes?
No, because it's Fair Use. I apologize for not staying as calm as I
originally intended on being, but in terms of the reviewers that you've
affected, you are literally infringing upon their copyright, right now. And
abusing YouTube's copyright system to hold their channels hostage like this is
not something that I can defend. They have the legal right to be able to
publish and monetize their Fair Use videos, and you are literally infringing
upon that right. You can't just keep showing us examples of defendants
claiming Fair Use, and then act as though that somehow delegitimizes
Fair Use as a whole. [Derek] This guy, the thief, responded with
the defense of Fair Use. Look right here. Claiming his work didn't reduce the
value of the original photograph. [YMS] In this example, you're showing us
the case never even went to court, so it very well could have been
determined as Fair Use. [Derek] They smacked that guy, and when
they do a private settlement like that, it's so they don't have to disclose how
much money was traded hands, there. Or how much he got beat, you know,
got smacked for stealing the artwork right there. You cannot steal copyrighted
artwork, or movie, or anything like that. It's illegal, and you're stealing right
there. A judge ruled in favor of Cariou! Right here, this gentleman ... claiming the
charges made against (?) weren't significant enough to constitute a change
in meaning, fair- or Fair Use. [YMS] See, this is the part of your video
that worries me a little, because when reading that sentence, you should have had
a bit of an epiphany regarding Fair Use. The changes made to Carious photographs
weren't significant enough to constitute a change in meaning - Fair Use; The changes
weren't significant enough to be considered a new meaning, and if they were, it would
be Fair Use. It is true that he altered photograph doesn't really change the
meaning all too much, which is why it's copyright infringement,
and not Fair Use. However, if the changes in the original are significant enough
to constitute a change in meaning, then it can be considered Fair Use. This is
supported by the very article that you're claiming states the opposite. If somebody
uploaded scenes from "Cool Cat Saves The Kids," and didn't provide any
sort of parody, or commentary, or criticism, and the only difference was,
that they photoshopped sunglasses onto Cool Cat's face, then you're right that it
would not be considered Fair Use. That would be copyright infringement,
because, although photoshopping sunglasses onto him would be changing the work, the
changes would not be significant enough to constitute a change in meaning - Fair
Use. On this website you're showing us, it's clear that they're running
advertisements. Hey! It's Funhouse! Those guys are pretty cool.
Once again, by your own logic, you are promoting a website that is actively
participating in copyright infringement. Once again, according to you, you are
copyright infringing both this website, and the guy that took this photograph. As for
this last example, it's not exactly as simple as you're saying it is.
[Derek] All they did- I mean how long is a song? About three minutes? All they did was
a simple beat in that song. A simple beat! And they matched it up to, uh, to a Marvin
Gaye song, and they got smacked. They got fined. They got penalized.
Seven point three million dollars. [YMS] If the only infringing factor was the
drumbeat, then it's highly unlikely that this case would have been considered
copyright infringement. Now you can easily win a court case, if your song's melody
and/or lyrics are copied, but as for drum beats and individual chord progressions, it
is virtually unheard of. The reason, why Robin Thicke and Pharrell lost the court
case is because they were essentially using the original song as a blueprint
to create their own. They ripped off the drumbeat, they ripped off the base notes,
the chord progression was too similar, and they were both using falsetto. And
there really isn't all that much more to the entire song.
[Brandon] At one point, Pharrell testified, that he had crafter "Blurred Lines"
on his own merits, without thinking about Gaye's song.
This contradicted several comments by Robin Thicke made in interviews, including
the time that he stated that he and Pharrell aimed to create a song reminiscent
of "Gotta Give It Up." He later reneged on his comments while on the stand, claiming
that he had lied, and was under the influence of alcohol and drugs during the
press run, which I imagine did nothing for his credibility in the eyes
of the jury or judge. [YMS] Just like your other
examples, this does not prove your case against the
reviews that you took down. All it does, is show that you're under the impression
that copyright holders have an unlimited control over their copyright. Thankfully
for all of us, that is not the case, and that is exactly what Fair Use is
designed to prevent. Otherwise you and your movie might be in legal trouble
with iPhone, ADT Security, Gmail, Jeep, Dakota Tires, Apple, again, Van Halen,
Jurassic Park, Ghostbusters, Hard Rock Cafe, Smurfs,
and the list goes on. Derek, if somebody was seriously
infringing on your copyright, then you would have my full support in taking
those videos down. But the reviews that you took down were not infringing
upon your copyright in any way. [Derek] I sent an (?) email, a nice email,
uhm, just, b- about three- three or four days ago, saying: "You know, let's
end this crap, you know, just give me a f- a little apology,
take down those videos, I'm a happy camper. I would not do any further
legal actions against you. [YMS] You're demanding that I Hate
Everything removes all of his Cool Cat videos, and issues a public apology to you,
in exchange for not pursuing legal action against him? Derek, you are the one who is
legally obligated to remove your claim from his and the other reviewers' videos.
I Hate Everything was wrong for publicly escalating this so quickly, but that does
not change the fact that you are illegally holding their channels hostage
right now. Which looks even worse, now that you've watched this video filled
with evidence that you are not in the legal right, here. I'm trying to be as
nice as I possibly can be, here, but you are literally going against everything I
have stood for on this channel over the past five years. I sincerely believe that
you weren't trying to fool anyone and that you're just genuinely
mistaken about Fair Use. There's a lot of people willing to
forgive you, so long as you stopped filing illegitimate claims against people.
[Derek] Ignorance of the law is not an excuse. Always remember that. You can't go
into court saying: "Well, judge, I didn't know it, I thought it was this,
I thought it was that." No, it's not. Ignorance of the
law is not an excuse. [YMS] There is a lot of misinformation
about copyright law. Even though my videos are Fair Use, I've dealt with more
copyright claims than I can count. Which is why every single one of my videos -
including this one - is mirrored on my website yourmoviesucks.org. Having my own
website that doesn't rely on youtube is a great safety net against copyright
claims. Whenever a video of mine is unjustly taken down from YouTube, people
can just watch on my website instead. Now, since my videos are Fair Use, I've won
every single copyright dispute that's been thrown my way. But you never know
when one's going to strike next, so it's good to keep everything backed up. Anyway,
before you respond to this, please try and remember that I'm not trying
to be mean to you, here. I'm only trying to correct the facts.
[Derek] That is not being a bully right there to any degree.
Stating a fact is a fact. [YMS] So, now that you know the facts,
please take initiative, and restore their videos. You are not legally allowed
to hold the videos hostage behind a set of demands. Even if you don't think that
this is the right thing to do, please do it, because it's the only legal thing to
do, Derek. You've already stated in your video, that their reviews have not
negatively impacted your sales whatsoever: [Derek] Over the past week - good lord
almighty - I have sold more Cool Cat movies than I usually do in a month and a half,
period; More Cool Cat tshirts - I had to place another order because I'm just-
I- I'm selling out of everything. [YMS] You've even got a five star review on
Ebay from someone who bought your product because of those reviews. We're all
counting on you to make this decision, Derek. And if somehow you watch
this entire video and you still believe that copyright law works in the exact
way that you stated it does, then please refrain from issuing any further takedown
notices, because remember: You don't own the video I'm reviewing right
now, 99designs does. Or possibly all of the artists featured in the
article. If you sincerely believe, that copyright law works the way you've
stated it does, then you don't actually own "Cool Cat Saves The Kids," and you
shouldn't be making claims on its behalf. Anyway, I know the rest of you are looking
forward to that "Unfriended" review, so don't worry, and it'll be out early
December. And in case you're wondering, a mirror for this video is linked in the
video description. Everyone have a beautiful day, and remember:
Cool Cat loves you! Peace! [Cool Cat] With cyber bullying, you kind
of... can't really stop it, if you don't know who it's coming from. But, my best
advice: Just ignore 'em! [Child Actor 1] Yeah!
They're the losers for trying to cyber-bully us. So don't lower your
standards by playing their stupid game. Anotherwords, don't let them punk you into
playing their game. [Cool Cat] And that's right! And
that's fantastic advice! [Child Actor 2] Yeah!
[Cool Cat] Yeah!
I am glad Adam put out this video, but it is too bad it had to be made in the first place.
As I stated in comments of the video, I don't think Derek is all those names some people are calling him, he's just some guy who really doesn't know any better. Let's hope this video get's to him and makes him see the right path.
Don't hurt him Adam :(
DeREKT
Adum is a class act. Great video, per usual.
Dat Funhaus shotout.
Is Derek Savage attempting copyright takedowns on YMS videos? I'm assuming not, considering how much they helped line his pockets.
Which is why I don't get his takedown of IHEs videos. They both made fun of Cool Cat, but yet helped him make money at the same time. Is there some invulnerability YMS has over IHE? I honestly don't understand his thought process here.
I legitimately found myself fist pumping the air at several points throughout this video. Thank you so much for this Adam. Savage's video is one of the dumbest fucking tirades I've ever seen anyone go on in my entire life, and I hope he carries that shame and embarrassment with him as he goes about his business as a reminder to not ever suppress the rights of others again.
Cunt cat indeed.
Hopefully Daddy Derrick will learn about what he did wrong