YouTube took my video down. All I did was play Star Wars on my banjo.

January 18, 2009 6:26 PM

YouTube yanked my Star Wars on a Banjo video saying Warner Music Group was claiming infringement. Did I break the law? Do I have any recourse?

See the original MeFi thread. This was a video of myself playing the Star Wars theme on the banjo in my house. I never made a penny off of it. It got to 1.5 million views though, and now they decided to pull it.

"Dear Member:
This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by WARNER MUSIC GROUP claiming that this material is infringing:

Star Wars on a Banjo: http://www.youtube.com/watch?v=PQBRSwZiYS4

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, please go to our Help Center to access the instructions.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

Sincerely,
YouTube, Inc."

Can they really do this? Can I fight back? That last paragraph makes me think that if I try to fight back, I might end up facing liability.

I'd really appreciate some advice!

posted by willc to law & government (15 comments total)

YouTube has a procedure for DMCA counter-notices. Basically, the DMCA permits copyright holders to send letters to ISPs and content sites alleging particular content to be infringing, at which point the ISP has to take it down. But the DMCA also permits the uploader or other person responsible for the content to submit a counter-notice, which usually gets the content restored.

The last paragraph actually states that the person who sent the original notice letter may be subject to liability if anything gets taken down by mistake or misidentification. Granted, suing Warner probably isn't in your best interest, but technically they're in the wrong.

Send a counter notice. Your stuff should be back up in a few days.
posted by valkyryn at 6:35 PM on January 18

IANAL, but it sounds to me like they're legally within their rights. It's not your song, and they aren't obligated to play nice.
posted by dinx2582 at 6:36 PM on January 18

Err, presuming that they are the copyright holder, which now that I think about it does not make sense (Lucasarts would, no?). If that was part of your point, I missed it regardless of how obvious this piece of information may have been.
posted by dinx2582 at 6:38 PM on January 18

Interesting. I think I'll give it a shot...I hate losing out on this!
posted by willc at 6:38 PM on January 18

Warner can't be the copyright holder, as the OP was the performer. You can prevent everyone from uploading your recording of your song, but you generally can't stop anyone from covering your song. Cover artists don't even need to get permission.

This is because copyright only protects particular expressions of creative works, not the "underlying ideas". So you can't upload anything you get from an album, because you're just copying someone else's expression. But you can record your own version of anything you like and upload that to your heart's content.

File the counter-notice. YouTube is actually pretty good about it.
posted by valkyryn at 6:52 PM on January 18

John Williams composed the score for StarWars in the 70s, IE: it wasn't some 300 year old piece of classical music. Presumably whoever owns the _composition_ copyright (either WMG or someone they are representing presumably) (See: Songwriters copyright) on the composition hasn't released it into the public domain. So ya, they can do this because you are infringing (assuming you haven't procured a licence). So while they can't prevent you from recording a cover they can collect statutory royalties on that cover. That you made no money has no bearing on this. It is a tricky area of copyright law though, YMMV.

Considering they probably registered the copyright for something that is very much a going concern you could count yourself lucky that they aren't chasing after you for damages. Having received 1.5M views might motivate them to file in court if you send youtube the counterclaim and is probably why the video has just been taken down recently.
posted by Mitheral at 7:00 PM on January 18

Please make some noise about this. We need more creative rights. Ultimately you may be in violation since I think many of these copyrights cover "performance" but with all the fan vids, covers, etc. on youtube... I don't know.

See what the EFF has to offer.

Also, Jessamyn West (MeFi admin) has a blog entry on this...

what-happens-in-a-copyright-dispute-on-youtube

Good luck. Please update this post to let us know how it goes!
posted by ezekieldas at 7:05 PM on January 18

Mitheral has it. When you cover a tune, you're supposed to apply for a license, which basically states that you will pay the appropriate royalties to the composers / their publishers at the standard mechanical royalty rate. Warner Chappell Music (which is a subsidiary of Warner Music) presumably owns the copyright and thus is the copyright holder to the composition, contrary to valkyryn's misunderstanding of this. You probably didn't apply for a license, which isn't a big deal except that it *points* to the idea that maybe you weren't intending to pay. You may not have received any money, but the fact is you could have . . . 1.5 million Youtube hits would have me wondering how else this version was being exploited, if I were the publisher.

It's a legal grey area for a lot of reasons (which has a lot to do with how Youtube makes money off of your piece), but some of the above advice is misleading - the publisher is totally within their rights to have your video taken done if you don't have a license (which is automatically granted, in most cases, so this is a technicality.)
posted by Dee Xtrovert at 7:19 PM on January 18

Warner can't be the copyright holder, as the OP was the performer.

This is totally wrong, as is most of the rest of that comment. Music absolutely is under copyright protection as soon as it is fixed in a tangible medium, whether that be sheet music or a sound recording.

If the movie consisted entirely of you playing someone else's copyrighted song, then you do not have a leg to stand on. Your recourse is to pay Warner for a license. There is little to stop Warner from suing you for your past infringement of a registered copyrighted work. But I guess they probably won't unless you make yourself into a pain in the ass.
posted by grouse at 7:44 PM on January 18

You cannot oppose this action because your recording and its distribution are illegal. valkyryn is wrong about the law. Compositions are subject to copyrights and this composition is certainly under copyright. You can generally produce a cover of a composition without arranging rights: they are covered by what are called "compulsory license provisions." But this involves paying royalties. If they wished, the owners of the copyright on this composition could seek royalties from you based on the number of times your cover was distributed on YouTube.

You can read about these laws in this government-issued .pdf The laws governing covers are not ambiguous as some would like to portray. It makes no difference whether you made any money, this is a persistent myth of copyright. To make a counterclaim against this you will have to assert you have the legal right to use this copyrighted composition. You do not: you did not arrange rights with the copyright holder and you did not go through the steps to obtain a compulsory license. If you assert this right falsely you do face liability. They probably won't do anything besides shitcan your account but it isn't really worth it.

I suspect Warner Brothers is the legal right holder in this case. I can't see them not owning all the intellectual property having to do with one of their properties.

I think many of these copyrights cover "performance" but with all the fan vids, covers, etc. on youtube... I don't know.

Virtually all of these covers are illegal. For the most part they are simply not defended. Some rights holders don't care. Some have no mechanism in place for finding and opposing them. I suspect (though I have no proof) that to make the task more manageable the major rights holders ignore everything that isn't very popular. I have to say I don't particularly agree with how these laws are portrayed but opposing this isn't going to do anything getting people "more creative rights." Only getting Congress to change the laws could do this.
posted by nanojath at 7:51 PM on January 18 [2 favorites has favorites]

The Harry Fox Agency is a clearinghouse for mechanical and download rights that will let you perform others' copyrighted works. I wonder if YouTube is considered streaming, and I'm not sure what you do then.
posted by PatoPata at 7:55 PM on January 18

This is because copyright only protects particular expressions of creative works, not the "underlying ideas". So you can't upload anything you get from an album, because you're just copying someone else's expression. But you can record your own version of anything you like and upload that to your heart's content.


WRONG. Both a song recording and its underlying composition are protectable under U.S. copyright law.
posted by applemeat at 8:53 PM on January 18

Warner just started doing this.
posted by rhizome at 11:23 PM on January 18

Warner claimed copyright infringement on one of my YouTube uploads on Friday. The video was an artist-sanctioned video recording of a solo singer/guitarist who wedged a few verses of Zepp's 'Ramble On' in an original composition. YouTube gave me the choice to delete the video, use the AudioSwap feature to replace the audio, or contest the claim. I chose to sleep on it. The next day, YouTube permanently suspended my account. I had built an intricately organized library of playlists, favorites, and subscriptions through the years. So wrong.....
posted by prinado at 11:32 PM on January 18

IANAL, but I have looked into copyright law quite a bit. Your case sounds like a pretty clear-cut copyright violation to me. Warner is within their rights.

I never made a penny off of it.

Doesn't matter. Well, in a sense it could, as profit is one of the factors considered in deciding whether a work is fair use, but the lack of profit alone does not make it fair use.

It got to 1.5 million views though, and now they decided to pull it.

Also doesn't matter. They could leave it alone for twenty years, and then decide to have it taken down, and they'd still be within their rights.

you generally can't stop anyone from covering your song. Cover artists don't even need to get permission.

It's already been said by several others in this thread, but this is just plain wrong. The only thing I can think of which might have led to this conclusion was the fact that you need permission from the copyright owner, which in many cases is not the original artist or composer. Artists frequently assign copyright to the record label as a part of the contract with that label, in which case you wouldn't need the original artist's permission to do a cover, but you would still need the label's permission, either directly, or indirectly through a licensing organization such as ASCAP or BMI.
posted by DevilsAdvocate at 9:17 AM on January 19