December 21, 2014

Posting A Parody Video? Read This First.

Lansdowne Public Library’s “Read It” video, based on Michael Jackson’s “Beat It”, was originally yanked from YouTube for a copyright violation. But the story may have a happy ending: the library director told LJ that “The Lansdowne Public Library ‘Read It!’ parody is back up on YouTube and I believe that it will stay there.”

When the video was first proposed, Lansdowne badly needed a project to educate and inspire its teen population. In the impoverished suburb just outside the Philadelphia city limits, the local teens are a textbook example of the digital divide. Few of them have computers or Internet access at home or at school, nor do they have much of any place to hang out except the library—the town doesn’t even have a recreation or community center, according to director Sandra Samuel Giannella.

When Giannella first joined the library, less than two years ago, she was horrified by how many teens had been banned from the library, and determined to get them involved instead. The library launched a well-attended teen summer program with activities such as live Angry Birds, and at a weekly staff meeting, Giannella mentioned that she’d always wanted to make a video parody of the Michael Jackson hit “Beat It” as “Read It.” The idea fell on fertile soil: it turned out Lansdowne’s public services and teen librarian, Abbe Klebanoff, is an amateur filmmaker. “She went crazy,” Giannella told LJ.

The Making of “Read It”

So as not to make the task too daunting for the students, Giannella originally tried to scale back expectations, saying they could simply do a portion of the song, but Lansdowne’s teen population was having none of it. They wanted to do the whole thing.

Giannella suggested that, in lieu of the sewer in the original “Beat It” video, the kids make their appearance from the library’s new book drop, and that the fight be between ereaders and print books. But that was the end of her contribution: the kids wrote the words, chose one of their own as a choreographer, learned the dance and the harmony parts, and performed it all themselves, a process that took about two months. Klebanoff filmed on an iPad and a local musician came in with his equipment and did the sound. The kids even formed their own teen advisory board for the library because of the project.

Once the video was finished, the library proudly put it up on YouTube… but in less than three days, it was gone. Replaced, Klebanoff told LJ, with a notice that said the video was blocked in the U.S. on copyright grounds.

The library’s feisty response? The teens and some staffers made another video for YouTube titled “Just UN Ban-It,” according to local paper The Reporter.

Is This Infringement, Or Is This Just Parody?

At first, said Giannella, “we thought it was a mistake.” Klebanoff called up Sony and tried to explain that “Read It” was fair use, but, she said, she was told that the video did not count as a parody, only a “message.”

This was probably a reference to the legal distinction between parody and satire. “This one child kept coming back to that, she kept saying, ‘how is this not a parody? We’re fighting with bookmarks,’” said Giannella.

In the absence of litigation, it is impossible to be sure whether a court would consider “Read It” to be either a parody or fair use. Previous precedents are ambiguous. For instance, “When Sonny Sniffs Glue” was held to be a parody of ““When Sunny Gets Blue”—and fair use—but The Cat NOT in the Hat was considered a satire, and not fair use.

In Campbell v. Acuff-Rose Music Inc., the Supreme Court said that if the new work “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh,” the work is less transformative, and other fair use factors, such as whether the new work was sold commercially, loom larger, according to the American Bar Association.

Notably, however, the court did not say that having no critical bearing on the original work disqualifies the new work as fair use, and in the case of Lansdowne’s “Read It,” other fair use factors might well weigh in its favor, since the library’s use was non-commercial and, as Julie Ahrens, Director of Copyright and Fair Use, Center for Internet and Society at the Stanford Law School, told LJ, “nobody is watching these Pennsylvania kids in a library instead of listening to Beat It.”

In such a situation, when there is little or no risk of market substitution, the court said that “taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.”

For libraries who are considering making similar videos, a certain amount of uncertainty seems to be part of the package. “There is no bright line rule in Campbell or elsewhere that only parody can be fair use, or that ‘satire’ is never fair use,” Brandon Butler, director of public policy initiatives for the Association of Research Libraries, told LJ.

Ultimately, however, Butler seemed to feel that many library videos would be on relatively firm legal footing: “What the Supreme Court has said is that because they are so strongly transformative, parodies will always present a strong case for fair use regardless of commerciality and other factors that (at the time) were often harmful to the fair use argument. Satire and other non-parodic uses are not banished forever from the fair use kingdom; they just have to be judged contextually, taking into account whether they are non-profit or commercial, the type of work they are using, their effect on the market for the original, and so on. Based on those criteria, I believe plenty of non-commercial videos that borrow elements from pop culture in order to make their own cultural message should be fair use, even if they aren’t clearly parodic.”

Why Them?

Lansdowne is far from the first to post a parody—or a satire—of a Michael Jackson song. They’re not even the first library to do so. “I’ve been sent parodies that have been done of Michael Jackson hits by libraries from all over the country,” said Giannella. So why was Lansdowne singled out for harsher treatment? According to Giannella, fans have speculated the difference in reaction is because Jackson himself has passed away and the estate is now making the decisions. “All the fans that have fan pages have put our article up, saying that it’s a disgrace to his memory,” said Giannella.

However, if the video was flagged by YouTube’s automated Content ID system, it is likely that neither YouTube, nor Sony, nor the Jackson estate made a specific decision to take this video down in particular. While the takedown notice, like all of YouTube’s, still ultimately originates with the rights holder, the way Content ID works is that the rights holder uploads their material in advance and gives YouTube a standing order for what to do whenever it finds that a partial or complete match has been uploaded: make money from it, get stats on it, or block it.

Users who feel that Content ID has misidentified their material can dispute the identification. Other avenues of redress for users who have had their material taken down from YouTube are to ask the original party to retract their claim or file a counter-notification, at which point YouTube passes it on to the rights holder, who has 10 business days to say if they’re seeking a court order. If they don’t, YouTube “may reinstate the material.”

Fighting City Hall

Klebanoff told LJ that she “proceeded to fill out the content ID and other paperwork,” but she didn’t stop there. “She tried everything,” Giannella said of Klebanoff’s efforts to reverse the takedown. She filled out the forms she was sent, she agreed to pay a $250 fee, she even went to Sony’s offices in New York in person “and just sat there staring at the receptionist,” said Giannella, “she started following people with rich-looking suits into the elevator saying, ‘please please please you have to look at this.’”

Sony responded to the library’s licensing forms by giving the library permission to put the video up on the library’s own website until June, but not on YouTube, Vimeo, or any other third party site, according to Delaware County’s Daily Times.

A Sony/ATV Music Publishing spokesperson told LJ, “A request was made to post the parody video ‘Read It’ on the Internet. While it is not our common practice to do so, we made an exception for the Lansdowne students, waiving all fees, because it is a well-intentioned effort by the students to motivate kids to read. Their video can now be viewed by anyone with Internet access.” The spokesperson declined to respond to LJ’s questions about the specifics of how the situation was handled, and a spokesperson for the Jackson estate referred questions to Sony.

The library did post the video on its own site, but Giannella told LJ that the library was not equipped to host streaming video and “Read It” kept crashing what they were able to cobble together. In addition, the kids who made the video were savvy about the difference between being findable on YouTube, with its hundreds of millions of users, versus the Lansdowne Library, which has only 10,000 members. “When we asked the teens why is this so important to you?, they said if we put it on our website, no one will see it, but now it is for the whole world to see,” said Giannella.

During her trip to New York, Klebanoff texted with a local reporter, who thought Lansdowne’s plight had the makings of a good story. Giannella worked with the reporter, and the resulting article caught the attention of the national media. The story has been picked up by ABC, CBS, and more: Good Morning America even traveled to the library to film a segment, though it hasn’t yet aired.

GMA set up Posting A Parody Video? Read This First.

Good Morning America setting up to film at the Lansdowne library

While Good Morning America’s film crew was at the library, the show received Sony’s statement above, which Good Morning America, the library, or both interpreted to mean that they now had permission to show the video on YouTube and other third party sites, not just the library website. While that interpretation may have been overly broad, it was apparently good enough for YouTube: according to Giannella, the library didn’t have to re-upload the video, it is now available again at the original URL.

Ironically, in an instance of the Streisand Effect, the main result of the temporary blockage has been to gain a far bigger viewership for “Read It” than it ever would have had otherwise.

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For more background, see further links on LJ’s infoDOCKET, edited by Gary Price.

Meredith Schwartz About Meredith Schwartz

Meredith Schwartz (mschwartz@mediasourceinc.com) is Senior Editor, News and Features of Library Journal.

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