OshieThe International Olympic Committee had our TJ Oshie, Again video removed from Vimeo for alleged copyright infringement. [Luckily someone uploaded it to another video site.] Here’s the takedown notice:

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I’m not a lawyer, but I play one on TV. The video was fair use. Section 107 of the US Copyright Act of 1976:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Here’s what Stanford University says about the Fair Use Doctrine:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original.

With that in mind, let’s delve!

1) Basically, are you selling the work or using it for news and entertainment purposes? We weren’t… selling it. Nor were there ads on the video. Also, here’s what Columbia University says about “transformative” works: “Courts also favor uses that are “transformative,” or that are not merely reproductions. Fair use is more likely to be found when the copyrighted work is “transformed” into something new or of new utility, such as quotations incorporated into a paper, or perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original.”

So is combining the Olympic™ footage with Miracle footage transforming the work into something new, something with an entirely different purpose than the original? You bet. 0-1, IOC.

2) Columbia: “The courts reason that copyright owners should have the right to determine the circumstances of “first publication.”

“Additionally, courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.”

The IOC and broadcasters determined the first use when they aired the game live and then again on replay. And it wasn’t a creative work. It was a nonfictional work. It happened. Live. On TV. A major sports event. There was nothing creative about it. It was a real event that they filmed and was broadcast to billions of people. 0-2.

3) Columbia: “Although the law does not set exact quantity limits, generally the more you use, the less likely you are within fair use. The “amount” used is usually evaluated relative to the length of the entire original and in light of the amount needed to serve a proper objective.”

We used roughly 90 seconds of a three-hour broadcast.

Columbia: “On the other hand, in some contexts, such as critical comment or parody, copying an entire work may be acceptable, generally depending on how much is needed to achieve your purpose.”

Even better! We could’ve used more! Because it was for parody! This is what allows late-night talk shows to use clips to comment on news and other broadcasts. Think The Daily ShowTalk Soup. Comment, criticism, parody. You think Jon Stewart has FOX’s permission to skewer their anchors? Of course not. But he can, because he’s commenting on them.

Columbia: “On the other hand, a court has ruled that a “thumbnail” or low-resolution version of an image is a lesser “amount.”

We used relatively low-res versions of the original broadcasts, not NBC’s glorious HD signal. 0-3.

4) Basically, did using the work impact the potential market for the copyright holder? I don’t know, did the IOC and its broadcasters lose advertising (or DVD sale!) revenue because an online parody spliced a few highlights together with a movie clip? Fuck no. They probably gained revenue from all the positive attention the event was getting online, this video included. 0-4.

And forget about all the legal mumbo jumbo for a second. The IOC is a non-profit organization charged with organizing and promoting the Olympics™. A video like this does nothing but create goodwill for their product. They’re not losing money. They’re not getting negative attention. They’re getting the 250k people who saw it excited to watch the next game on Wednesday. It’s a no-lose scenario. Let the video run, which legally it should be allowed to, and reap all the positive PR from it. Hell, announcers calling the games are doing extra promotional work for you!

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But no, IOC, let’s ban the video so you can continue to be draconian assholes. Smart.