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Copyright Nightmares and Plagiarism Heists: How the Law Is on Your Side and Corporations Don’t Care

05 Jan

I once uploaded one of my own audio recordings for my YouTube channel to iTunes since it was really hard to get the recordings into the apps I used to use for video editing. iTunes DRM locked my own recording, locking me out of using it in apps. What the fuck kind of sense does that make, Apple? Come on, Tim Cook, grow your baby’s-first-computer company up and teach it copyright. Despite international copyright law being pretty cut and dry (to me at least) and it recognizing fair use, most people don’t understand what copyright means, how it works, how it is infringed, and what qualifies for plagiarism. I’m going to try to break down some basics and explain why I think international courts need to start cracking down on the disruption of fair use, and what we as creators and critics can do to make them.

Copyright vs Publication: Stephenie Meyer and the Midnight Sun Leak

A few years back, Stephenie Meyer, author of the Twilight series was working on a novel called Midnight Sun covering the events of Twilight from Edward’s perspective, when it was leaked on the internet. Some people erroneously thought that since her novel hadn’t been published yet that she had no legal recourse for the leak. This is simply not true. I believe these people were confusing publication with copyright. Before I publish this post on my blog, it is subject to copyright. As I come up with the idea and write down notes on the post, it is subject to copyright. Copyright protects the creators of intellectual property from plagiarism at all stages of the creation process. However, it is much easier to prove in a court of law that something is your intellectual property once it has been published. The digital age has made it a little easier than it used to be to prove that something was yours before publication, but seriously, was there any doubt in anyone’s mind that Midnight Sun was written by Stephenie Meyer? She decided against going to court because the person who leaked it had done so accidentally and she posted her own version of the incomplete novel for people to read. She did, however, lose her motivation to finish it, which is the risk of your creative project being distributed in an unfinished form without your consent.

Fan Fiction Gets Published

Technically, fan fiction can be considered plagiarism. And before I start talking about E. L. James, I’ll talk some more about Stephenie Meyer. A few years ago, I decided to try to watch Roswell, not the new CW TV show called Roswell, New Mexico, but the first one with Katherine Heigl. After one horrific episode, I wasn’t just shocked by how terrible it was but also by the fact that all this seemed familiar. Why? Because the plot of the first episode is basically the same as the first half of Twilight the novel. There is a small group overly insular kids, who are only friends with each other, and our main character, a girl who doesn’t consider herself attractive and isn’t popular, is saved by one of the male members of that group in a miraculous and inhuman way. They start to fall in love even though his friends don’t want him to get close to her. It’s the fucking same. I know Roswell wasn’t good (certainly not worth a remake), but I don’t think Melinda Metz and Jason Katims deserved to have their shit ripped off.

Image result for roswell tv showImage result for twilight book cover

A lot of people think that the Fifty Shades of Grey books are Twilight fan fiction, but I’ve had a joy of seeing Secretary, and I’m pretty sure those books are more of ripoff of that great movie, considering that both the men’s names are Grey and it is focused on a budding BDSM relationship.

Related imageImage result for 50 shades of grey book cover

The Hunger Games series has been frequently compared to Battle Royale, of which Suzanne Collins claims never to have heard. Yes, because movies, a manga series, and a novel are all hard to miss, even if they are Japanese. Koushun Takami didn’t bother going to court over it because sales of the various Battle Royale works increased after people starting pointing out that The Hunger Games was basically the same thing. Neither of them are very good novels, but if you are going to read one, read Battle Royale. The translation may not be great, but the subject is far better treated by Takami than it is by Collins.

Image result for battle royale book coverImage result for the hunger games book cover

I know a lot of stories are derivative, but sometimes creators aren’t very good at hiding their sources. I’m okay with people doing this if they admit it, because I believe art is cumulative, but in our litigation heavy world, the homage and the retelling is getting harder and harder to do with more recent works. Paradise Lost is a retelling of Genesis and can be called fan fiction. Ulysses is a retelling of the Odyssey and could be called fan fiction. It’s called influences, and we shouldn’t have to live in fear of what inspired us as creators.

Social Media and the Age of the Meme

The internet and social media especially has exploded the number of creators in the world. Blogs (like this one), YouTube, Twitter, Pinterest, and Facebook has created an excess of bite size media producers, most of the work being referred to as Memes, which basically now means a graphical joke, either still or moving, but typically short. The number of comic artists being seen, especially parody creators, has skyrocketed. And this is where copyright gets fuzzy. Is is plagiarism to take someone’s photo, art, video, audio, or copyrighted creation, put your own spin on it and publish it online? I argue that yes, it is. In the U.S. at least. The first amendment protects parody, so all those comic artists creating jokes around how stupid Infinity War is are completely legal. The fair use doctrine also protects those who comment and/or criticize an intellectual property that is not their own, which, to me at least, covers a lot of memes. This is debatable and is not accepted by all nations, despite fair use also being part of the International Copyright Laws. Many Japanese companies often ignore fair use entirely and China often ignores copyright wholesale. I believe, though, that there is a good basis to argue that memes are fair use and protected by law. I think this is good thing as well because creation should be more fluid and people should be able to comment and criticize other creative works, even in bite size ways.

Europe, Are You Insane?

As a writer and artist, I believe that creators own their work, and I don’t believe in censorship. As a critic, I understand that any one not technically working for a company, but creating individual commentary has the right to do so while using copyrighted work to make their points. The European Parliament has passed laws on copyright and creation they think will help things. And I have a hard time not laughing and then breaking down in tears over the bullshit they call progress on this front. Automation is main goal of the biggest websites, like YouTube, Facebook, WordPress, etc. It’s hard to hire enough people to cover all the content that ends up on a site of that size, and it’s also very costly. The European Parliament is putting the responsibility of preventing copyright infringement on these platforms. This will mean automation, upload filters as they are known, to check to see if the content violates copyright. Since copyright law is complex, it’s hard to imagine that any automated system will be able to recognize the difference between something that is stolen vs something that qualifies as fair use. The law will also limit sharing of links for some unfathomable reason. Because showing your sources is  . . . bad? Because sharing knowledge with others is . . . wrong? They also think this law is going to help small journalists. Somehow. In Europe at least. Founder of Wikipedia, Jimmy Wales, along with several other big names of the internet, signed an open letter against the law, saying that the internet would not be what it is today if a law like this existed 25 years ago (source: https://www.wired.com/story/europes-copyright-law-could-change-the-web/). This suggests that other newly developing websites will never reach the level of something like Wikipedia with this new law in place. I am not okay with the idea that growth will be stifled for new content creators and platforms, thus locking in the big websites without any chance for real competition and innovation.

Journalism, Big and Small, and Fair Use

Rooster Teeth, one of the biggest online creator groups, known for RWBY, Red vs Blue, and the journalistic series, The Know, is breaking up with YouTube. Rooster Teeth existed before YouTube was big, and they’re probably going to survive this breakup just fine. There are many other smaller or individual journalists on YouTube, many of them focused on gaming news, such as YongYea, Laymen Gaming, CleanPriceGaming, Jim Sterling, and movie news or mixed news, like WhatCulture, ScreenJunkies News, and critics, like AngryJoe, Screen Rant, Nostalgia Critic, Red Letter Media, Yahtzee Croshaw, and myself, AlexofAllTrades. All of us, including The Know, were/are utilizing copyrighted material under fair use. We are commenting on it. We may not be NBC, CNN, BBC, Fox, ABC, or CBS, but that doesn’t give us any less rights to the fair use doctrines. We just don’t have the lawyers or clout to back us up. Which is why I question how Europe’s new law is going to help small journalists, when automated copyright checking on YouTube has failed time and time again to recognize fair use and taken down videos and whole channels because of this. So forcing other websites to do what YouTube is failing to do well is a bad move for smaller journalists around the world.

YouTube, You Unethical Jackass

Europe’s new law basically forces the large companies into using upload filters and currently YouTube already has an upload filter. I must say that this is used ineptly at best and unethically at worst. The upload filter does not recognize fair use. It makes sense that it should go after clips of items that don’t have commentary in the form of audio or text over the clip or before or after the clip. However it does go after clips that have commentary. A YouTuber does not have to talk over the clip for it to qualify for fair use. They could talk before or after the clip and the clip is either being used as evidence of a point or being examined closely. That’s the reality of fair use. That’s just good composition. The upload filter does not recognize this however. That’s where it is inept. It is unethical in that it allows large companies first dibs, before a video is live to say that the video is their property. Normal individuals do not have this capability. That’s unethical as it is unfairly applied. YouTube does not review the claim of copyright infringement before taking action against the video uploaded. The company claiming copyright is given carte blanche to remove the video, block the video from view in multiple countries, and/or monetization. Any claim prevents the YouTuber from monetizing the video, and if the YouTuber was not eligible for monetization already, the company can make money off their video when the YouTuber never could have. This is also unethical. If the YouTuber disagrees with the claim, they can dispute it. The dispute is not reviewed by YouTube or a third party legal department, but the company that claims the infringement. They typically reject the dispute, regardless of what the YouTuber puts for their reasons. YouTube has no acknowledgement of mixed copyright items. So if a video qualifies as fair use in reality, but the company fails to acknowledge it, the company and YouTube by the way they have built the system is violating the copyright of the YouTuber. If I do a review of a Sony Pictures movie and include clips and stills to illustrate my points, that is fair use. If Sony Pictures monetizes my video under the YouTube system of handling large corporations copyright, they are in violation of my copyright and engaged in plagiarism. This is the same as if Sony took the profits from an issue of BoxOffice because the magazine did a feature on the movie Venom using images from the movie. It doesn’t make any sense in that instance. It’s obvious copyright infringement to make money off of the labor of the critic who wrote the feature and the magazine itself. Why would doing this suddenly make sense to do it on YouTube? YouTube doesn’t make any money off those YouTubers who can’t or don’t monetize. This gives them an incentive to allow big companies like Sony erroneously to monetize small YouTubers videos. It also allows big companies to lower the impact of negative reviews, such as my review of Arrival, which is blocked by Sony and Paramount in about 275 countries and wasn’t exactly glowing. YouTube allows and frankly encourages these kinds of copyright infringement. If after the company rejects your dispute, you’d like to contest it further, your contestation does not go to YouTube. It still goes to the company claiming infringement. If they reject it again, the video is taken down and the YouTuber is given a copyright strike. Three strikes and this channel is taken down. Only then if you contest the strike, does it go to YouTube. This is lazy on top of being incompetent and unethical. Who are we to believe that the same would not be done when other websites are forced to add upload filters? I think we would be suckers to believe that it would be any better.

Giving It Away for Free, You Awesome Slut: Doing the Work vs Selling the Work and Your Options as a Creator

A lot of creative people give content away for free. Not just little things, but big things too. It doesn’t mean their copyright doesn’t apply; it just means they aren’t making any money directly off the content. My YouTube channel and this blog are entirely free without ads as well. I make no money off of either. Why would an artist do this? Well, for one thing it’s the “get them in the door” method and for another, whether or not I got paid to do those things, I would still do them. Currently I do not have a lot of subscribers or followers and frankly, I’m okay with that. Creative people who think the notice and money are the marks are success are often tremendously unhappy when they have neither of those things. John Kennedy Toole wrote two novels, neither of which were published in his lifetime. He shopped his novel, A Confederacy of Dunces, around a lot, but there were no takers. Toole eventually killed himself. I can’t help but think that if he had found more satisfaction in the work he had done, in that he had actually done it, he accomplished what many can’t, he completed a novel and then moved on to new projects while shopping his novel around, that he may not have become so depressed. Does it suck not being noticed? Yes, it does. But the real work, the real accomplishment, is in doing it, is in improving your skills. If a person were to prioritize that, then I believe they could be okay.

And now with the internet, it is much easier to give it away for free. To me, second after actually doing the work, is getting people to look at it, not to make money. Even if it is just a small number paying attention. To the one or two people who will read this, even if you don’t write a comment, I’m still thankful for your time. Some types of work should be free, and I believe YouTube videos and blogs fall under that category. But to swing it back around again to Stephenie Meyer (I swear I’m not a fan; she’s just had a storied career), she gave away her novella The Short Second Life of Bree Tanner. She didn’t have to do that. People would have paid for it. It was only for a short period, but still, to generate interest in something fans would still have gladly paid for, she released it for free. Some people argue against creative people giving away work for free. It is true that the majority of us don’t make a lot of money. I do believe that creative people should be valued and that means being paid. Before anyone drags out my “When Opportunity Knocks, It’s the Opportunity to be Exploited” Higher Ed Chronicle letter (https://www.chronicle.com/blogs/letters/when-opportunity-knocks-now-its-the-opportunity-to-be-exploited/), there is a difference between systematic exploitation and working pro-bono. Creative people should choose what work they want to be paid for. They should not be forced into working for free. That’s called slavery and it’s not only inappropriate, it’s illegal. Artists often provide their work for free to charities or to in need demographics. Look at Pixabay. Robin Higgins provided 108 free images of herself there under a creative commons license (Thank you, Robin). Many of the memes you see, come from websites like this, with images supplied by photographers, artists, and models specifically to support the internet culture. The internet is a culture of sharing, so frankly, these people are the heroes of the internet. If you find a reference to a peer reviewed article you’d like to read, but don’t want to pay the periodical for access, you can contact the writer and they will in all likelihood send it to you for free as they don’t make any more money when you pay the periodical for it. The internet isn’t just a culture of sharing memes. It’s also a culture of sharing knowledge and ideas. This is a good thing. The internet also gives IP creators a chance to control with a fine touch what they can make money off of and what they give away for free. It’s a good idea to take advantage of this. Decide who, how, and on what you make your money. It’s your choice.

The Law Is on Your Side, but the Real Issue Is Money

It’s important as a creative person and as a critic to know international copyright law, in order to protect yourself and to make your own decisions about what to do with your work. And always remember that if someone takes your idea, but not your exact words, without crediting you, they are still committing plagiarism, much like Filip Miucin did to smaller YouTubers. Reviews often cover similar ideas, but when the organization of the review is exactly the same, despite the words not being the same, then we’re dealing with plagiarism. No upload filter is going to catch something like that, and upload filters do not recognize quoting and the development of sources as fair use. So when you start working on the internet, it’s a good idea to look into a lawyer to protect yourself. But most of us can’t afford one. So here are some sources on pro bono lawyers that focus on copyright infringment: https://www.americanbar.org/groups/intellectual_property_law/resources/probonostates/ . Unfortunately, you will have to do a search in your specific locale for a law firm, as lawyers are allowed to practice per state or nation, so you want to make sure that you find a local lawyer. There is also the possibility of filing class action lawsuits against websites with systematic issues of copyright infringement against multiple individuals such as Facebook and YouTube. With there being so many individual creators without a lot of money, this is the best option. The problem is that someone with more notice will have to get the ball rolling, putting out the word that a class action lawsuit is needed. Small artists and critics need to work together to make real change happen, and before you think it is impossible, large groups of people with not a lot individually have made changes before. And before you think litigation is unsavory, realize that the law and litigation are there to help you as well as large businesses. Also, most of the negativity over litigation in the US was promoted by PR firms hired by large corporations, as the McDonald’s coffee case with the older woman was not the first case brought against McDonalds on the temperature of their coffee and that woman had a prolonged hospital stay and nearly died. The real villain of that story was McDonalds. So please, if you have been victimized by a non-criminal offense, please find yourself a lawyer and fight it. Do not think: This is just the way it is. That’s the kind of thought that allows more and more people like yourself to be victimized again and again. Protect yourself and stand up for yourself. We all need to do this as creators and critics, especially in the new world of global, individual creation and publication. Let’s fight for ourselves, together.

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