Rant Time: YouTube, Copyrights and Content ID
Unless you’ve been living in a cave, you probably know what YouTube is. It is a video sharing platform that allows anyone to post video content onto the Internet. YouTube offers the likes of travel videos, personal vlogs, how to guides, DIY projects, music to all types of random content. However, Hollywood has forced Google to employ more and more heavy handed techniques to video uploads to (ahem) protect big Hollywood copyright content. This system is severely flawed. Let’s explore.
YouTube Channel ownership
While it’s fun to run around on YouTube looking for all kinds of weird content, let’s look at what it’s like to be a channel owner and all the fun we’re not having. While I do like writing blog articles, I also have a gaming channel on YouTube. So, I have personal experience with this issue. I like to play games on my consoles and upload recorded game content to YouTube for others to share in my fun.
As a channel owner, you really don’t get many tools other than a content uploader and metadata tools to tweak a video’s description, tags, monetization settings, language, etc. As a channel owner, YouTube offers no tools to the owner to validate that your content is, in fact, your content. Meaning, for example, you might have taken a video of a day at the beach with wave sounds in the background. Then, you’ve uploaded it. Or, you’re playing Grand Theft Auto and you record your session (minus any copyrighted audio to not trigger YouTube’s audio content detection system) and upload. Here’s where things start to fall apart.
YouTube Content ID and content ownership
Besides being a channel owner or a viewer, there is also a third lesser known management meta user. This interface is intended to be used by Hollywood and the music industry. It was designed for the likes of EMI, Sony and other large music and movie conglomerate content creators (mostly by legal threats to Google). This system allows those content creators to submit their content to YouTube into the Content ID system. What is Content ID?
Content ID is a way for YouTube’s automated system to match a channel owner’s content against a copyright owner’s uploaded reference content. Seems like a legitimate thing. I mean, it allows artist’s representatives to make sure their content isn’t being placed onto YouTube unauthorized. Where’s the problem then?
YouTube is the problem
Here’s the rant. The problem is that ANYONE can create a meta content management account and begin uploading any content they wish against YouTube’s content ID matching system. YouTube requires no verification by any alleged content creator. They create a content meta account, get approved (which is apparently relatively easy), upload random content and begin matching against videos on people’s channels. In fact, I’ve even seen content management accounts grab original videos from other people’s channels, download them from YouTube, upload them into the content ID matching system and claim ownership over material that they stole from the original owner. Yes, you can even upload content you downloaded from another YouTube channel and claim ownership of that content in your channel… though, that’s called copyright infringement.
YouTube has taken its somewhat usable platform and turned it into a joke. YouTube is a disaster if you actually expect YouTube to help you protect your own original copyrighted content. Yes, it does allow someone to download a video you own, upload it and then claim ownership of it.
Let’s keep going. What happens when content ID matches a video uploaded through the meta content management account against a channel? YouTube does several things:
- It flags the video on the first channel owner as copyrighted content matched against another channel. Basically, the system tells one channel that another channel has claimed ownership over that content even if the claim is false (we’ll come back to false claims).
- It allows the alleged ownership claimant to monetize the video (even if they do not own the content).
- It allows the first channel owner to dispute the copyright claim, remove the video or leave it up (depending on how the content ID matcher is used).
- If the content owner claims exclusive content claims on the content, the content on the first channel can be taken down or deleted.
Disputes
Here’s where the entire system falls apart. While YouTube can match content fairly rapidly, filing a dispute can take days, weeks or sometimes months to resolve. All the while the content is in dispute, YouTube allows the claimant access to monetization over the content in question. Here’s the bigger rub (as if monetizing content you don’t own isn’t big enough).
False claimants are never at all verified by Google. YouTube’s content ID matching system assumes fair play by those approved to use it. That is, people who create meta content accounts are on their honor to upload content that they actually own. In fact, this isn’t happening. While legitimate usage of this system is happening by big content providers, many lesser channels have learned to game the system to claim ownership over content they don’t rightfully own and don’t have the rights to monetize. This is especially true for channels outside the US (i.e. Russia and Vietnam) where copyright rules don’t apply in the same way as in the US. This ridiculous YouTube help article which discusses setting up a meta content account states:
“Content ID acceptance is based on an evaluation of each applicant’s actual need for the tools. Applicants must be able to provide evidence of the copyrighted content for which they control exclusive rights.”
Yeah riiiiiight. Content evidence of what exactly? Copyrights, especially on YouTube are nebulous at best. What are you expected to show, the camera it was created on? How does that prove anything? There’s no way to know that any particular video was produced on any particular camera. YouTube doesn’t show camera EXIF information in the video’s metadata.
Copyright Basics
US Copyright law states that as soon as a work is created, you are automatically the owner of it and possess all worldwide copyright ownership to this work in perpetuity. This is considered an implicit copyright. You don’t have to do anything other than create the work to own it. This assumes some basics like, it must produced entirely by you on your own equipment and on your own time. However, some countries, like China, don’t recognize implicit copyrights at all. Instead, to protect your copyrights in the countries that don’t recognize implicit copyrights, you are required to fill out forms, possibly pay a fee and likely submit your work as evidence. Only then will your work be explicitly acknowledged by the government to exist and that you own that work.
For example, when you’re using your own personal phone to take video of you playing games at an arcade, this work is now considered fully owned by you under US Copyright Law. The moment the video (and audio) is created, it’s yours. On the other hand, if you are hired as an employee of a production company, and that company owns the equipment and they have hired a camera crew to follow you around watching you play games, you won’t own that video content because the production company paid to create it. Of course, there are pesky things like contracts that can explicitly authorize or deny ownership of copyrights to any party involved in a production. So, if your content is created under a contract, you should read your ownership rights carefully. Just because you were involved in a production, doesn’t necessarily mean you have any copyrights to that material.
Evidence of Copyright Ownership?
In this day and age of immediate gratification, YouTube content owners rely on implicit copyright ownership protections to allow their channels to exist. That is, as soon as the content is created and edited (implicit copyright ownership), it’s uploaded to YouTube.
In the case of copyrights, how can anyone sufficiently provide ‘evidence’ over any content? What kind of evidence does YouTube expect to see? The camera it was shot on? The recording studio that it was recorded at? A bill of sale? Seriously, how can you possibly provide ‘evidence’ of ownership for copyrights?
The only way to provide even the smallest amount of evidence is to submit your work to the U.S. Copyright Office for registry. Let’s understand why this is not exactly feasible for most YouTube content. At the moment of this article…
- It costs $35 to register a single work (one poem, one video, one work of art).
- It costs $55 to submit multiple works together (a collection of poems, videos or songs).
- Who knows how long it will take the copyright office to actually register them so that you have ‘proof’.
Sure, while you could do this to, ahem, protect your works, it’s expensive and what exactly does it do for you? The Government won’t stand up on your behalf. The copyright office is merely a registry, not a legal team. They won’t help you protect your content, that’s your responsibility to find a lawyer. It’s also not like Google will get involved in copyright disputes either. For the prices listed above, that would cost $35 for every single video you upload to YouTube and that only registers your work in the US, not necessarily in other countries. It doesn’t give you any specific legal protections other than someone can go look it up, like Google. You may be required to register your content in many different countries to protect your rights in those locales. You’re also responsible for hiring a lawyer to protect your content (regardless of whether it’s registered).
Google and Copyright Disputes
Google outright states they do not get involved in copyright disputes. Yet, by providing a content ID system, content matching and marking videos in YouTube as being claimed by another channel, this absolutely, most definitely is the very definition of getting involved.
If you don’t get involved in copyright disputes, you don’t create controls to help manage disputes. Meaning, it’s entirely disingenuous to create a copyright dispute system and then when someone disputes a claim (that your system sent us notification) state that you don’t get involved. You can’t claim that. You already ARE involved by providing the notification system.
Worse, once you begin the dispute process, Google’s YouTube team doesn’t care. They don’t actually attempt to review the content, the owners or anything related to the dispute at all. They just let the two parties fight it out even if the content isn’t owned by either of them.
Content ID System is Half-Assed Designed + False Claims
Google’s YouTube team got this content system just far enough to make Hollywood and the music industry happy because they can kill content on channels matching their own content catalog. Yet, Google never brought it far enough to actually prevent scammers from abusing it. Instead, Google lets random scammer channel owners run roughshod all over YouTube’s other channels without any consequences. I’ve seen scammer channels claim false copyrights over multiple legitimate channels (even my own) using content that they clearly do not hold copyrights over and yet those channels STILL exist on YouTube. Google does nothing about this. Why was this channel not closed? Clearly, these scammer channels have willfully violated copyright laws using YouTube’s woefully under designed crap of a content detection system to facilitate these false claim(s).
Claiming false copyright ownership over content is, in fact, copyright infringement and very much against copyright law. However, because most of these scammers are outside of the US, Google won’t do anything… not even close the scammer’s channel. Though, sometimes Google will close the legitimate channel and leave the scammer operating. That false claimant had to copy and upload that content to YouTube’s matching system which, in itself, is a violation of copyright laws. This means that Google’s content ID system facilitates false copyright claims and makes Google an accessory to copyright infringement. Google allowed the copyright infringement to take place and allowed the fraudulent claimant’s channel(s) to profit off of that infringement. This is a legal situation just waiting to happen.
Google, fix your shit. YouTube is quickly becoming an unusable mess of a video sharing platform and is now just one big lawsuit waiting to happen against Google. A lawsuit against Google for not only being an accessory to copyright infringement, but providing a service that actually enables copyright infringement in a system that’s supposed to prevent it. Ironic. Such a lawsuit, if won, might ultimately be the end of YouTube.
If you’re an IP lawyer reading this and you would to have a discussion about this situation, please leave me a note on the Randosity About Page.
When Digital Art Works Infringe
What is art? Art is an image expression created by an individual using some type of media. Traditional media typically includes acrylic paint, oil paint, watercolor, clay or porcelain sculpture, screen printing, metal etching and printing, screen printing or any of any other tangible type media. Art can also be made from found objects such as bicycles, inner tubes, paper, trash, tires, urinals or anything else that can be found and incorporated. Sometimes the objects are painted, sometimes not. Art is the expression once it has been completed.
Digital Art
So, what’s different about digital art? Nothing really. Digital art is still based on using digital assets including software and 3D objects used to produce pixels in a 2D format that depicts an image. Unlike traditional media, digital media is limited to flat 2D imagery when complete (unless printed and turned into a real world object.. which then becomes another form of ‘traditional found art media’ as listed above).
Copyrights
What are copyrights? Copyrights are rights to copy a given specific likeness of something restricting usage to only those that have permission. That is, an object or subject either real-world or digital-world has been created by someone and any likeness of that subject is considered copyright. This has also extended to celebrities in that their likenesses can also be considered copyright by the celebrity. That is, the likeness of a copyrighted subject is controlled strictly by the owner of the copyright. Note that copyrights are born as soon as the object or person exists. These are implicit copyrights. These rights can be explicitly defined by submitting a form to the U.S. Copyright office or similar other agencies in other parts of the world.
Implicit or explicit, copyrights are there to restrict usage of that subject to those who wish to use it for their own gain. Mickey Mouse is a good example of a copyrighted property. Anyone who creates, for example, art containing a depiction of Mickey Mouse is infringing on Disney’s copyright if no permission was granted before usage.
Fair Use
What is fair use? Fair use is supposed to be a way to use copyrighted works that allows for usage without permission. Unfortunately, what’s considered fair use is pretty much left up to the copyright owner to decide. If the copyright holder decides that a depiction is not considered fair use, it can be challenged in a court of law. This pretty much means that any depiction of any copyrighted character, subject, item or thing can be challenged in a court of law by the copyright holder at any time. In essence, fair use is a nice concept, but it doesn’t really exist in practice. There are clear cases where a judge will decide that something is fair use, but only after ending up in court. Basically, fair use should be defined so clearly and completely that, when something is used within those constraints, no court is required at all. Unfortunately, fair use isn’t defined that clearly. Copyrights leave anyone attempting to use a copyrighted work at the mercy of the copyright holder in all cases except when permission is granted explicitly in writing.
Public Domain
Public domain is a type of copyright that says there is no copyright. That is, the copyright no longer exists and the work can be freely used, given away, sold, copied or used in any way without permission to anyone.
3D Art Work
When computers first came into being with reasonable graphics, paint packages became common. That is, a way to push pixels around on the screen to create an image. At first, most of the usage of these packages were for utility (icons and video games). Inevitably, this media evolved to mimic real world tools such as chalk, pastels, charcoal, ink, paint and other media. But, these paint packages were still simply pushing pixels around on the screen in a flat way.
Enter 3D rendering. These packages now mimic 3D objects in a 3D space. These objects are placed into a 3D world and then effectively ‘photographed’. So, 3D art has more in common with photography than it does painting. But, the results can mimic painting through various rendering types. Some renderers can simulate paint strokes, cartoon outlines, chalk and other real world media. However, instead of just pushing pixels around with a paint package, you can load in 3D objects, place them and then ‘photograph’ them.
3D objects, Real World objects and Copyrights
All objects become copyrighted by the people who create them. So, a 3D object may or may not need permission for usage (depending on how they were copyrighted). However, when dealing with 3D objects, the permissions for usage of 3D objects are usually limited to copying and distribution of said objects. Copyright does not generally cover creating a 3D rendered likeness of an object (unless, of course, the likeness happens to be Mickey Mouse) in which case it isn’t the object that’s copyrighted, but the subject matter. This is the gray area surrounding the use of 3D objects. In the real world, you can run out and take a picture of your Lexus and post this on the web without any infringement. In fact, you can sell your Lexus to someone else, because of the First Sale Doctrine, even though that object may be copyrighted. You can also sell the photograph you took of your Lexus because it’s your photograph.
On the other hand, if you visit Disney World and take a picture of a costumed Mickey Mouse character, you don’t necessarily have the right to sell that photograph. Why? Because Mickey Mouse is a copyrighted character and Disney holds the ownership on all likenesses of that character. You also took the photo inside the park which may have photographic restrictions (you have to read the ticket). Yes, it’s your photograph, but you don’t own the subject matter, Disney does. Again, a gray area. On the other hand, if you build a costume from scratch of Mickey Mouse and then photograph yourself in the costume outside the park, you still may not be able to sell the photograph. You can likely post it to the web, but you likely can’t sell it due to the copyrighted character it contains.
In the digital world, these same ambiguous rules apply with even more exceptions. If you use a 3D object of Mickey Mouse that you either created or obtained (it doesn’t really matter which because you’re not ultimately selling or giving away the 3D object) and you render that Mickey Mouse character in a rendering package, the resulting 2D image is still copyrighted by Disney because it contains a likeness of Mickey Mouse. It’s the likeness that matters, not that you used an object of Mickey Mouse in the scene.
Basically, the resulting 2D image and the likeness it contains is what matters here. If you happened to make the 3D object of Mickey Mouse from scratch (to create the 2D image), you’re still restricted. You can’t sell that 3D object of Mickey Mouse either. That’s still infringement. You might be able to give it away, though, but Disney could still balk as it was unlicensed.
But, I bought a 3D model from Daz…
“am I not protected?” No, you’re not. If you bought a 3D model of the likeness of a celebrity or of a copyrighted character, you are still infringing on that copyrighted property without permission. Even if you use Daz’s own Genesis, M4 or other similar models, you could still be held liable for infringement even from the use of those models. Daz grants usage of their base models in 2D images. If you dress the model up to look like Snow White or Cruella DeVille from Disney’s films, these are Disney owned copyrighted characters. If you dress them up to look like Superman, same story from Warner Brothers. Daz’s protections only extend to the base figure they supply, but not once you dress and modify them.
The Bottom Line
If you are an artist and want to use any highly recognizable copyrighted characters like Mickey Mouse, Barbie, G.I. Joe, Spiderman, Batman or even current celebrity likenesses of Madonna, Angelina Jolie or Britney in any of your art, you could be held accountable for infringement as soon as the work is sold. It may also be considered infringement if the subject is used in an inappropriate or inconsistent way with the character’s personality. The days of Andy Warhol are over using celebrity likenesses in art (unless you explicitly commission a photograph of the subject and obtain permission to create the work).
It doesn’t really matter that you used a 3D character to simulate the likeness or who created that 3D object, what matters is that you produced a likeness of a copyrighted character in a 2D final image. It’s that likeness that can cause issues. If you intend to use copyrighted subject matter of others in your art, you should be extra careful with the final work as you could end up in court.
With art, it’s actually safer not to use recognizable copyrighted people, objects or characters in your work. With art, it’s all about imagination anyway. So, use your imagination to create your own copyrighted characters. Don’t rely on the works of others to carry your artwork as profit motives are the whole point of contention with most copyright holders anyway. However, don’t think you’re safe just because you gave the work away for free.
Random Thoughts - Randocity! 
leave a comment