UK YouTube channels fair usage/parody exception

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Mikesndbs
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UK YouTube channels fair usage/parody exception

Post by Mikesndbs »

Hi

I run a modest YouTube channel that I'm lucky enough to have a partnership with YouTube in.
I've recently run into the unhappy situation of having some of my content taken and used by another UK channel to make a mocking video about a companies products, one of which I did a review on.

The other channel did not give credit or seek approval despite my work being marked as (c) and not for remixing.

The other channel owner when challenged initially hid the offending video and uploaded a new one minus my content. I was asked to remove my copyright claim which I did but the next day he put the original back up having only hidden it. YouTube acted swiftly to remove it.

The other channel owner is saying he was allowed to use my content without permission because it was fair dealing under the parody exception. However as I was the third party and not the company being parodied I disagreed.

He is now claiming all content can be sampled under fair dealing.

Could someone help me understand all this.

I had read UK copyright law that seems to suggest unless he is making non profit educational or accessibility videos he needs to seek permission in the normal manner? Thanks
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AndyJ
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Re: UK YouTube channels fair usage/parody exception

Post by AndyJ »

Hi Mike and welocpome.

If the other guy used the term fair dealing and not fair use, he is presumably referring to the UK law on the subject, and you are right that the law needs to be fairly narrowly interpreted for the fair dealing exception to apply. Since this particular provision was introduced in 2014 there haven't been that many cases in which the courts have had the opportunity to define the parameters of the parody exception.

However before delving into what the courts have said on the subject, it it is worth saying that there are two types of parody, which academics have identified as 'target' and 'weapon'. Target parody uses the original work or works or style of an author to make a parody which mocks or treats humourously the same work or works or author. Weapon parody takes a recognisable work and appropriates its notoriety as the weapon to mock or be humourous about something completely different.

The most significent case post based on the modern law is a 2014 decision by the Court of Justice of the European Union known as Deckmyn. On that occasion the CJEU said that to constitute parody, the derived work should evoke the original work while being noticeably different from it, and the derived version should contain an element of humour or mockery within it. Deckmyn was an example of weapon parody as the work being parodied (a cartoon comic) was used to mock a politician who was accused of being reckless with public money. Deckmyn was further refined by the CJEU in a case known as Pelham II in which it was found that parody was not an all-embracing term whiich encompassed caricature and pastiche; each had its own separate defintion and set of factors which applied to it. However that distinction doesn't concern us here.

The UK courts have considered parody in only one notable case, and even then the parody aspect is somewhat subordinate to other issues in the case. This was the Shazam (Shazam Productions Ltd v Only Fools The Dining Experience Ltd & Ors) case, in which the court first had to decide if copyright applied to the literary characters involved, before it could establish whether, if copyright did apply, the parody fair dealing exception was sufficient to get the defendants off the hook for infringement (spoiler alert: yes, the characters were protectable, and no, the exception was not applicable in this instance). In fact the court found that there was no parodic element to the infringing behaviour, which merely amounted to copying.

So returning to your specific issue, given what the CJEU said in Deckmyn, the fact that what is being mocked is not your work but the work of someone else may allow it to get past the first hurdle. However where weapon parody is concerned the permissiblle extent to which the original work may be used (or sampled) is correspondingly much less since the link between the two (the work being parodied and the object of the parody) is usually weak or non-existant. And irrespective of where the parody is directed, it would need to pass the 'fair dealing' test of not taking more of your work than was absolutely necessary for the purpose of parody. If the parody version took so much that it damaged the economic rights in your own work, then that would count against the parodist in this second stage of the assessment. Furthermore, with due respect to you and your Youtube channel, can it really be said that your content is so widely known as to be instantly recognisable as the underlying source of the parodic work? Maybe if you and parodist appeal to virtually the same audience then that might be the case, but if his is a different target audience, then in my view, the claim to be using some of your content as a weapon parody would be very hard to justify, if few or any of his audience could recognise tne source.


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Mikesndbs
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Re: UK YouTube channels fair usage/parody exception

Post by Mikesndbs »

Thank you that's really helpful.

It's such a shame that YouTubers like me suddenly have to consider frighteningly complex legal matters just to protect our work.

I'm someone that goes to enormous lengths to gain permission if I want to use any material from another and in most cases permission is happily granted.
Equally I've allowed others to use extracts from mine if permission and or attribution is given.

Clearly this comfortable polite way of dealing is not the whole story.

It's interesting to note that my work not being instantly recognised is an advantage to me in this case. I've tried to read up but just get confused. Thanks again, hopefully that's an end to it but it does make me worry about protecting my work in the future. Perhaps a weakness of YouTube
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AndyJ
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Re: UK YouTube channels fair usage/parody exception

Post by AndyJ »

Hi Mike,

I agree that when it comes to parody, pastiche and caricature, it is difficult to know where the boundaries are. Some more caselaw would help create certainty. But in the mean time it's your call. If you don't think this use of your work is 'fair' then you can continue to call this infringement and expect Youtube to back you up. It is then up to the other company to put their money where their mouth is and sue you if they think they have a good case. That is highly unlikely to happen. Given how they behaved before, editing their video then later re-uploding the original, indicates that they are chancers and know perfectly well their work is infringing yours.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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