DMCA Takedown Notice Leveled Against Ohio Congressional Race Ad 130
Ponca City, We Love You writes "EFF reports that after Ohio Congressman John Kasich put out a commercial featuring a man dressed as a steelworker discussing Governor Ted Strickland's record, Strickland's campaign folks apparently realized that the 'steelworker' was really a paid actor, and put together their own video, mixing in clips of some of the actor's other work to make fun of Kasich. Now the DMCA has been used to send a takedown demand to YouTube that it remove Stricrkland's video for at least 10 days because it uses short clips from the actor's movies." The video has since been restored, some of the reasons for which are listed below.
"First, the political video's use is transformative because it provides evidence that the supposed steelworker was actually a paid actor and as the Supreme Court explains, transformative works 'lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright.' Second, the political ad only uses a few seconds of the original film, so a fair use is particularly justifiable when it uses the minimum necessary to make its point. 'What's troubling, yet again, is that this form of political speech has been removed from YouTube in the heat of an election battle,' writes Mike Masnick on Techdirt. 'Even if the takedown was not political, it's clearly a case of copyright law being used to stifle political speech.'"
Fair use must be considered (Score:3, Informative)
And the Strickland campaign might want to point out this ruling in Lenz v. Universal Music [eff.org] where the judge said that copyright holders must consider whether the use of the material constitutes fair use under copyright law before filing their takedown request.
Re:R & D please? (Score:5, Informative)
Link to the video (Score:4, Informative)
Re:reasons for which are listed below..... (Score:3, Informative)
Re:It's about time this crap hit's a Congressman! (Score:4, Informative)
Re:No consequences (Score:4, Informative)
But has anyone ever heard of ANYONE actually paying any kind of penalty for misrepresenting a video (or anything else) to get a DMCA takedown? Has anyone ever suffered any real consequences for this, even though it amounts to perjury?
In Lenz v. Universal [wikipedia.org], a U.S. district court ruled that failure to consider applicable defenses such as fair use before filing an OCILLA notification is misrepresentation.
Re:No consequences (Score:3, Informative)
It's not a congressional race! (Score:5, Informative)
Oh, it gets even BETTER! (Score:4, Informative)
So apparently a user called "KC Allen" claims on the Vimeo page for the parody-of-the-ad [vimeo.com] that
The Ohio filmmaking community is outraged by a web ad published to YouTube, sponsored by the Ohio Democratic Party. The ad is an attack in response to a recent commercial from the Kasich camp, in which a local actor portrayed a man out of work. The ODP ad features clips from films in which the actor has appeared, in violation of copyright.
Setting aside the incredible hubris associated with speaking for the entire filmmaking community in a state (heck, at least he could have tried to claim something about speaking for a particular group of filmmakers in Ohio, were he the spokesman or president of the body), I am quite appalled at the shoot-from-the-hip nature of his alleged copyright infringement claim.
KC Allen continues:
One film, from Arginate Studios was produced in 2010 as part of an international film contest based in Washington DC, the 48 Hour Film Project, while the other was produced by Whiskey Tent films. No permission to use the clips was asked for or granted by the filmmakers or other responsible, legally permitted parties.
I hope when he says "responsible" he mean "people responsible for granting rights," not "people who act responsibly." I mean, the latter case is kind of a judgment call, no? :-)
And I fully appreciate his (likely) factual claim that no permission was asked for or granted. Of course (as others have pointed out), the authors of the parody work might have a strong fair-use defense.
The filmmakers of the state of Ohio demand an immediate public apology for this lack of respect and egregious violation of their hard work and professionalism.
Here we go again, speaking for a group of people without any evidence that you have the authority or position.
What, do you want me to claim that the Computer Programmers of the Whole Internet demand an immediate public apology from the filmmakers of the State (capitalizing the proper noun) of Ohio?
Then you have the witty comeback from "Modern Esquire":
You're right because no independent film maker has ever splice in footage from other films, tv shows, music, etc. It's called Fair Use. Which is part of the copyright law. There's absolutely no legal basis for your complaints. None.
Well, I wouldn't say "none," because I'm not a copyright lawyer, but yes, it does look like there's a pretty strong defense here.
Then, someone named "Sam" apparently knows the actors and decides to chime in:
You are seriously going to argue that actors don't have the right to not appear in political attack ads based of their completely unrelated narrative work?
I'm not talking about Chip here... if it was only Chip and actually used to illustrate his acting career... you know by including his work with larger companies like 'safe auto' and appearance on 'Lost' instead of editing a string of insults... which according to you add to the debate... I'm talking about Rick and the girls who are clearly recognizable. They have nothing to do with this and now their faces are stuck on an attack ad which nearly the entire central ohio film community finds offensive.
I've got to give Sam credit for at least saying "nearly the entire central ohio film community" as compared to KC Allen's bit of hyperbole. I'm also quite sympathetic to what Sam sees as a potential defamation against "Chip" and "Rick" and the women who feature in the clips. I can be a bit disconcerting to see your video chopped-up and used in a different fashion than it was originally intended. But on the flip side, I believe all of the clips used are from commercial productions, and there's got to be very little expectation of privacy or prevention of people doing things protected under Fair Use with these commercial clips.