Profiting from Copyright Infringement

The never-ending battle continues.

I have just filed four notices of copyright infringement with Youtube. The first notice has already resulted in the taking down of a copy of one of my plein air painting videos that had been uploaded to another account.

(UPDATE: Seven videos from three near-identical accounts. All copies now removed. UPDATE Jan 29: It appears the offending channels have been deleted.)



Yesterday afternoon I was showing a friend some of my videos on Youtube but I noticed that infringing copies on two other channels were often the first ones to come up in the Youtube search results. This is, to put it mildly, annoying.

Taking a look at the two offending channels, each of which contains over 200 videos, it was soon clear to me that these were not fans celebrating the work of their favourite artists. Their content includes all types of "paint" from watercolour to house paint and the "About" information consists of nothing more than long lists of paint-related key words.

It appears to me that the channels in question are monetised, which means they receive payment every time a video on their channel is viewed. I suspect the channels are there solely to attract viewers, presumably to profit from views, and that the account holder has little interest in the material reproduced on the site.

When someone steals your content, they also steal your viewers. If your own channel is is monetised, then the copyright offender is also stealing your money.

Most importantly, perhaps, is that the original author misses out on interacting with viewers. Comments and questions asked on copyright-offending channels usually go unanswered as the channel owner is unlikely to care or even be in a position to answer questions. Likes and dislikes are important ways for an author to gauge viewer interest and guide future projects, but they do not get this information if the content is viewed and rated elsewhere.

If you find interesting-looking videos on Youtube, check who has posted it and, if they don't appear to be the author, take a look around Youtube and see if you can find the person who owns that video content. Then view the videos on the authors' Youtube sites instead.

How to lodge a Copyright Complaint on Youtube:

If you are an author who feels their video copyright has been infringed, lodge a complaint with Youtube.

Click on the flag symbol under the offending video and a list of options will appear. Choose "Infringes my rights" then choose "Infringes my copyright" from the next list to appear. Press submit.

From the next window, choose the option to submit a copyright complaint and another browser window/tab will open up where you can fill out all the relevant information including the web address of the offending videos and the address of your original. You can include multiple complaints on one form by choosing "Add another video".

Copyright complaints are legal claims to ownership and there can be penalties for lodging false claims, so you will also have to fill out some personal details plus make a declaration that you own the content and are making the complaint in good faith. Hit the submit button and you will receive emails from Youtube advising you of the status of the complaint. Hopefully the offending video will be removed within 24 hours.

If enough complaints are received, I understand Youtube is likely to delete an entire channel. If a channel exists only to profit from other people's work, without credit or agreement, then this would be a good outcome.

Stirling Afternoon - plein air video

My latest plein air landscape sketch video has just been uploaded.

This painting features a view across farmland to the Stirling Range, home to Bluff Knoll – the the highest peak in southern Western Australia.

(Stirling afternoon. Plein air sketch. 30x25cm oil on board. © Andy Dolphin)

It was a very cloudy day but the sun did break through occasionally and light up the view. Days like this can be challenging if the sun spends too much time behind clouds but it peeped out often enough on this occasion to keep me almost sane.

I actually began this painting on a board I'd previously used for a plein air painting that ultimately failed. I had only laid in the foundational wash of that painting when the sun disappeared behind heavy cloud and all semblance of light and shadow vanished with little hope of returning that day. I scraped the paint off the board and wiped it back with a paper towel. This left me with a board already stained with a warm, transparent earthy tone.

NOTE: You can watch the video here on the blog but I'd recommend going to Youtube and viewing it at full size (click the little "cog" symbol and choose 480p if your internet connection can cope).

Thanks again to Kevin MacLeod, who offers hundreds of royalty-free music tracks on his Incompotech website.

Uploading this video generated an interesting copyright dilemma. If that sort of stuff fascinates you, you can read about it here.

You can see my first painting video, Barrow Road, on Youtube too.
Or my second video Winter Light - plein air painting.

New plein air painting video!

Well, there would have been a new video if not for an apparent glitch in Youtube's copyright protection strategy.

When a new video is uploaded, it is scanned and compared to thousands of audio files in Youtube's database, to see if any of the audio in the video file matches any of the audio in the database. If the Youtube "robot" thinks it found a match, it flags the video with a copyright infringement and offers various ways to proceed.

So, if you video your dog catching a ball but have the Top 100 radio station playing in the background, your video will probably get flagged for a breach of copyright. In the majority of cases this probably works as intended and prevents people potentially benefitting from someone else's uncompensated efforts. You're not allowed to upload Top 100 music, even if it was accidental.

However, it appears the automated system has at least one significant flaw - classical music.

Once a piece of music has come out of copyright and become public domain, anyone is free to make their own recording of it. But each of those recordings has its own copyright. So it is possible to have several copyright claims apparently on the same piece of music. But the claim is only on the new recording, it cannot apply to the music itself. And therein lies the problem. If you and I and ten other people all sit at our pianos and record a version of a piece by Mozart, the chances are we would have twelve recordings that sound very much the same (except I can't play piano but bear with me here). We would each then have copyright on our own recording, but there's a good chance, it seems (based on forum discussions), Youtube's robot wouldn't know the difference.

So imagine what happens when major recording artists do their own cover versions of the classics and lodge them in the Youtube database – and then someone else releases their own version of the same classics royalty free, for anyone to use... Do you see the problem?

Well, to cut a long story a bit less long, my new video got flagged.

Before I go any further, let me assure you that I did not breach any copyright. Every music track in my video was sourced from Kevin MacLeod's Incompetech website. Mr MacLeod releases his music under a Creative Commons licence which allows royalty-free usage as long as he is properly credited.

But the Youtube robot thinks my track is from somewhere else. Perhaps it sounds like someone else's music but unless Incompetech have got it wrong, it isn't someone else's music.

I used "Midsummer Sky" from Kevin MacLeod while Youtube believes I have used "Encontré la Leche" by someone else. Maybe they sound the same but I did not use "Encontré la Leche" in my video.

The Youtube robot offered me the option of accepting the infringement is genuine, which will result in ads being placed on my video and the alleged content author being compensated for something they did not* produce. Or I could file a dispute.

I have filed a dispute, which is something of a pain because the process requires selecting from a short list of reasons for disputing the copyright claim. None of those reasons seems, at first glance, to be appropriate in a case like this because there's a presumption in the options provided that the robot isn't mistaken. Each option also comes with a warning that this is essentially a legal claim and in some cases legal counsel is recommended before lodging the dispute.

After contacting Incompetech, I put my anxiety to one side (and be assured this has caused significant anxiety) and chose to dispute the claim on the basis that I have written permission/license to use the material. Later in the dispute process came the option to offer a short written reason for the dispute and this is where I have identified the actual source of the material in question with a link to the licence.

I have taken this decision for several reasons, not least of which is that I feel I am absolutely in the right. I initially conceded the claim, because of all the dire warnings about what could happen if a dispute is over-ruled (hence the anxiety), but I do not feel it is right for a third party to receive compensation (through ad links) for a product they did not produce, especially when the actual producer has made it freely available. Indeed, I feel this result would be absolutely contrary to the intent of the system - to prevent people incorrectly benefitting from someone else's efforts.

So I reverted the acknowledgement and lodged the dispute instead.

I have no idea how long it will take for this to be resolved. My reading suggests it could be weeks. In the meantime I have marked the video "private" so it cannot be viewed. UPDATE: I've unlocked it. See blog here.

I hope to make it public as soon as possible, hopefully intact and without ads.

I'll take this opportunity to again thank Kevin MacLeod for the incredible resource he's provided.

UPDATE:
It seems that, despite his altruism in providing these music files royalty free, Kevin MacLeod spends quite a bit of his time having to deal with incorrect copyright claims being made against his work by other parties.

Read more about the wrong third-party content copyright claims and copyfraud.

*I accept at face value Incompetech's claim to own the rights to the music they offer royalty free. I've seen nothing to imply any impropriety on their part so I feel assured that the music I've used is not owned by any other party.

Copyright - do you "get it"?

 And now for something completely different...

I first took an interest in copyright years ago when I was producing commercial illustration. Not because someone had stolen my work but because I wanted to be informed about my rights with regard to my own work and also to know what I was, and more importantly was not, allowed to do with other people's work.

History has taught me that I seem to be in a tiny minority. While almost no one could be in much doubt these days about the illegality of copying music and video, few people seem to understand, or care about, copyright in relation to artworks.

Before I continue, let me state that I am not a lawyer and do not have in-depth knowledge of copyright law. But I think I can give the reader a few things to think about.

Firstly, it's "CopyRIGHT", not "CopyWRITE". 

Copyright, as the term implies, is about the "right to copy" something. It could be a song, a movie, a painting, a piece of pottery or, indeed, written words. Copyright exists the moment a work is created. It does not have to be registered or contain a copyright (©) symbol. Even a quick sketch on a café napkin has automatic copyright protection.

If you want to use someone else's work but have no understanding of your rights then it might be safest to live by the simplest "rule":

If you didn't make it and you didn't pay for the right to copy it, you probably don't have the right to copy it. So don't do it.

That's pretty blunt, and yes, there are exceptions, but it sums up almost every situation you might find yourself in when considering if you have the right to use artwork, including photographs, for your own purposes.

You don't own the internet and almost all the things on it don't, and never will, belong to you.

When you want to make an advertisement, logo or promotional print for your club, business or just for yourself, you can't legally just go to "Google Images", find a picture you like and use it. It's stealing.

Google does not own the rights to the images it serves up in a search so Google has no power to authorise the use of those images. Think of a Google search as "window shopping" - you can see the products you want but that doesn't mean you can just take them and use them without permission. The images almost always belong to someone and that someone probably isn't you. It's a pain, but that's reality for you.

Exceptions might apply if the author specifically gives rights to use their works for certain purposes. For example, I state in my sidebar that my blog images can be used freely in some circumstances and that permission can be sought for other uses - and I have given that permission, for free, to several people who have asked. But you cannot use one in an advertisement for your business, for example, without permission.

There are also exceptions in the law that might allow you to use an image without permission. Copyright law differs from country to country but such exceptions might include:

• review or criticism
• research or study
• news-reporting
• judicial proceedings or professional legal advice
• parody or satire

[source: wikipedia] 

There's also quite a bit of nonsense surrounding copyright law...

Silly reasons to infringe copyright:

•  "it's okay if you change 10% of it" - nonsense. 
• "it's okay, I'm not making money off it" - doesn't matter
• "the web is public domain" - nonsense
• "I improved it. You should be happy" - nonsense
• "I'm giving you better exposure" - doesn't matter
• "I included your signature or link" - doesn't matter
• "I don't know who owns it" - not you
• "I tried to contact the author" - you failed
• "I was on a deadline" - doesn't matter
• "It didn't have a © symbol on it" - doesn't need one
• "I copied it from an amateur" - it's still copyrighted
• "It said 'free desktop wallpaper'" - it didn't say "copy me"

There are more. Some people seem to be able to easily remember the complicated nonsense, but never the simple reality.

Copyright and fine art:

Artists, and some art owners, should learn about copyright and how it might apply to them. 

Buying a painting, for example, does not mean you also own the right to reproduce that painting. You own the item, but not the intellectual property. You can hang it on your wall. You can re-frame it (usually). You can probably burn it to warm yourself on a winter's night. But you can't make postcards from the image because that requires copying. The artist always retains the copyright unless they explicitly transfer that right, in whole or in part, to someone else - or maybe if they died over 70 years ago (and that number keeps changing).

Artists often learn their craft by copying existing works. They might copy from the old masters, from "how to" books or from workshop demonstrators. Obviously demonstration pieces are intended to be copied for learning purposes - but that's pretty much where the right to copy ends. Copied pieces should not usually be offered for sale as the copying artist's own work and should never be entered into competitions since the creative foundation of the painting is a large part of what gets judged - and the expression of the idea isn't yours, it belongs to the original artist.

The lines can sometimes seem a little blurry and if you're unsure, seek legal advice. If that's too expensive, then you probably can't afford the risk of a copyright infringement anyway.

The world is growing smaller by the day. Things that happen in the most isolated corner of Australia can now be seen, within seconds, from the other side of the world. To illustrate why this matters, let me briefly tell you the tale of  "Cooks Source", a small, free, hand-delivered publication produced in America since 1997.

Cooks Source were apparently reproducing, without permission, recipes they'd sourced on the internet. When they were caught out by the author of some of the recipes, Cooks Source defended their action claiming the internet is "considered public domain" and effectively telling the author she should be happy they'd used them. "The internet" retaliated and within hours word spread across blogs and social media sites illustrating a phenomenon known as the Streisand Effect (where an attempt to hide a situation results in it receiving much wider publicity). The magazine's own Facebook page was bombed with complaints. I witnessed it all happening - it was a sight to behold.

After some 13 years of operation, Cooks Source closed two weeks after the internet backlash. It was an incredible lesson in where copyright infringement might lead.

You can read the full story on wikipedia.

Again, I am not a lawyer. Do not rely on this as advice. If you're in Australia, however, you might want to visit the Copyright Council of Australia's website or Arts Law for more detailed information.

Comments are very welcome and, I'll make adjustments or additions to this article as the need arises.