What is fair use? And who gets to decide what constitutes fair use of multimedia intellectual property? Like any concept, fair use of copyrighted media has a theory and a practice.[1] Ideally, they align without issue, and by issue we mean litigation. Media studies scholars and practitioners have collectively developed “best practices” to help mitigate these risks.[2] But, “best practices” only go so far. When educational content constructed in accordance with fair use principles is uploaded to video-sharing websites like YouTube or Vimeo, the theory of fair use can come into conflict with the practice of fair use and, more specifically, with how the practice of fair use is necessarily circumscribed by the policies and practices of these websites. Our experiences using YouTube—and, to a lesser extent, Vimeo—to share work-in-progress on a series of instructional videos, revealed the extent to which those specific policies and practices moderate the practice of fair use in ways that compromised our mission of sharing this resource as widely as possible.

As a corollary to empowering our students to claim fair use in creating audiovisual essays for course assignments, we have claimed fair use in creating a series of instructional videos that teach key terms for film and media analysis by incorporating selected excerpts from film and television examples to illustrate the application of these terms.[3] We call it The Audiovisual Lexicon for Media Analysis and, together with a number of our colleagues at the University of Michigan, we have been using selected entries to support teaching the large introductory lecture course in the Department of Film, Television, and Media since the fall 2018 term. When the global COVID-19 pandemic obliged many instructors to unexpectedly and immediately move instruction online, in March 2020, we uploaded draft versions of the entries we had more or less fully completed at that time to the internet.

We chose to upload draft versions of a number of Audiovisual Lexicon entries to an existing YouTube channel curated by the University of Michigan Department of Film, Television, and Media. We chose this for the practical reason that the department had a YouTube channel that was maintained by a staff member, and we were (over)confident that each entry fell well within fair use guidelines, and thus no issues would arise. The response was fairly immediate and has been overwhelming by our standards. To date, The Audiovisual Lexicon has more than 20,800 views, and has been watched for about 630 hours in nineteen different countries. During the past nine months, more than two-hundred additional users became subscribers to the department YouTube channel hosting the videos, and we have received correspondence from teachers in North America, Europe, and Asia who are using The Audiovisual Lexicon in their courses. Several university libraries, including the University of Florida, the University of Illinois-Chicago, UCLA, and others, have added The Audiovisual Lexicon to their online library subject guides. We doubt we could have achieved this level of dissemination without YouTube’s wide user network and discoverability through YouTube and search engines like Google.

However, distributing these videos beyond the university has presented challenges. While YouTube may be one of the most discoverable platforms on the web, its flagging of ostensible copyright violations is done by algorithms, and the ensuing petition process directs petitions to the copyright holders without providing much of an opportunity to support fair use claims. This has limited our ability to exercise fair use because in several cases, the platform’s policies and mechanisms for monitoring and enforcing ostensible copyright violations provided little recourse for supporting our fair use claims, stopping our use altogether. These Audiovisual Lexicon entries were blocked as “Video Unavailable.”

The Audiovisual Lexicon is composed of streaming videos each roughly three minutes in duration in which a different expert explains the meaning of a specific term and applies it to analyze selected film, television, or media examples. Our idea was not necessarily to replace existing textbooks or glossaries, but rather to supplement existing resources. Students have told us that they learn better from seeing concrete applications of key terms, and they seem to benefit from having these lessons in the form of short videos which they can pause and review on mobile devices. Each entry relies on well-established fair use norms, including the incorporation of excerpts of short duration relative to the entirety of the original work and the transformation of those excerpts through critical commentary. We currently have sixty-two entries in near-final draft form, and are still recruiting additional contributors with the plan of filming additional entries at the next in-person SCMS conference.[4]

Before March 2020, only undergraduate students enrolled in the introductory course in the Department of Film, Television, and Media at the University of Michigan had access to The Audiovisual Lexicon. More than a thousand of these students have served as a test audience for work-in-progress on draft entries. Our aim is to eventually publish final versions of these and additional entries in a sustainable digital format that is highly discoverable, without paywalls or credential walls, which can be maintained and updated to work with the latest technologies. Our short-term goal, however, was to make the content available quickly, with maximum diffusion, even if the temporary solution was not necessarily archivally sustainable. Thus, we considered only the two most trafficked Anglophone video sharing sites for pre-recorded content: Vimeo and YouTube.[5] Several of the best-known websites that publish academic audiovisual essays online, including [in]Transition and Audiovisualcy, use Vimeo, which offers relatively inexpensive hosting of high-quality video content that is free of advertisements and free to the public.[6] YouTube is likewise open-access, although videos are more heavily compressed than on Vimeo and watching almost all content requires viewing at least one advertisement unless a user pays for premium membership.[7] YouTube boasts a massive community of over a billion users who together watch about a billion hours of content every day. The site is also the second most-used search engine after Google, which has over seventy-five percent of the search engine market-share (and owns YouTube), a combination which helps to give YouTube videos priority over other videos in most search results.[8] The Vimeo community is smaller—consisting of around 90 million registered users and 170 million unique viewers per month—but it is generally understood to be a more prestigious platform catering to artistic and commercial media makers.

Most pertinent here, Vimeo and YouTube mediate fair use of intellectual property in different ways and to varying extents. Both platforms anchor their policies in the Digital Millennium Copyright Act (DMCA) enacted in 1998 in the United States, which (along with Section 230 of the Communications Decency Act) protect websites from being liable for copyright infringement by participating users. One result of the DMCA was the implementation of a general procedure for the removal of content deemed to infringe on copyright: copyright holders submit a formal takedown notice to the hosting website, which must then remove the video. If a content creator submits a counter-notice in which they affirm (under penalty of perjury) their rights to the video and agree to the jurisdiction of a federal court, then the video must be restored to the website, and the copyright holder must elect to sue if they want to continue to uphold their claim.

Within the DMCA framework, Vimeo and YouTube’s policies for permissible use of copyrighted content crucially differ. In 2014, Vimeo launched a “copyright match” system that detects uses of third-party copyrighted content, particularly music, by means of an algorithm. However, the system is rarely used. Because Vimeo’s business model is membership-driven—rather than advertisement-driven like YouTube’s—the company has little incentive to pre-emptively screen for copyright violations, given their financial success relies on attracting and maintaining paying creators and not appeasing copyright holders outside the scope of the DMCA. Vimeo’s default stance is to “place responsibility on our members to articulate their fair use claims.” Vimeo moderators are empowered to “remove videos that constitute obvious cases of infringement,” but their policy dictates that this only occurs “when they are brought to our attention.”[9] Of course, this system neither protects against copyright holders issuing a DMCA takedown notice against a video (which Vimeo will honor unless a content creator files a legal counter-request) nor from the holders suing the content creators. It does, however, act as a buffer ensuring fair use claimants are not immediately put on the defensive by barring or limiting their content and makes copyright holders and their agents need to first discover and then manually file against suspected infringement.

On the other hand, YouTube mobilizes proactively in response to any use of copyrighted material, and tends to treat all uses of copyrighted material the same while ceding the mediation process to the copyright holders themselves rather than its own content moderators. Unlike Vimeo, YouTube generates most of its revenue from advertisements and will revenue-share with content creators if their channel meets the minimum number of subscribers and annual watch hours. This advertisement-based business model has also incentivized close relationships with the media industries which produce the content that is most likely to be taken down for copyright infringement. In order to minimize the removal of content, YouTube pre-screens all uploads for the use of copyrighted material owned by these major companies and allows these companies to decide whether a video remains visible, in which case the rightsholder receives a share of the advertisement revenue, or if it is blocked (as several Audiovisual Lexicon entries were). Most copy-right holders choose to monetize videos that use their material, instead of blocking them entirely, ensuring the website keeps as much content online as possible.

When a creator uploads a video to YouTube, it passes through its “Content ID tool” which checks the audio and video files of uploads against a database of reference files submitted by copyright holders who “own exclusive rights to a substantial body of original material”—namely major media conglomerates. There is some question as to the efficacy of the tool, however. Google claimed in 2016 that it flags 98% of all copyright infringement on YouTube, although the Universal Music Publishing Group has legally challenged this claim, countering that the “Content ID tool” only detects around 60% of the copyright infringement on YouTube. If a match occurs, the identified content is subject to the rightsholder’s preset decision to monetize, track (i.e. disable advertisements and collect viewing data), or block a video automatically. This occurs without human intervention.

Content creators then have the option to accept the match and the designated terms, or dispute the automatic claim YouTube placed on the video on behalf of the rightsholder. Opening a dispute activates a two-part appeal system.[10] Users claiming fair use as the basis for counter claims then need to determine the “type” of video they created by transforming copyrighted content. (YouTube supplies a list of the twelve most common types including “educational,” “remix or mashup,” and “commentary,” among others, or users can provide their own type.) Claims must also include an explanation of how the use of “the claimed content [is] an example of fair-use.” YouTube then sends the dispute to the rightsholder for review by a representative of the company, likely the first time a human involved in adjudicating the decision has seen the video in question. In this system, the rightsholder can choose to release their claim or decline the dispute without explanation. If the dispute is declined, content creators in “good standing” with YouTube can appeal this decision by supplying a longer explanation, but the rightsholder still makes the decision. If the rightsholder again declines the appeal, YouTube removes the video from the site and charges a “strike” against the user’s account, which can lead to account termination if the user accumulates three “strikes.” While rightsholders are legally required to consider fair use before submitting a DMCA take-down notice, YouTube’s policies strongly favor rightsholders. Content creators who rely on fair use are at the mercy of the copyright holders themselves, who effectively act as mediators despite the obvious conflict of interest. In order to pursue fair use claims to the fullest extent permitted, content creators must be willing to risk account termination or litigation—the latter, of course, always being a possibility. Consequently, some law scholars and high-profile content creators like WatchMojo have complained that the system is unfair, arguing that it allows media companies to unlawfully claim revenue from content creators.[11]

Even though nearly every one of the current entries in The Audiovisual Lexicon includes some amount of copyrighted video, the YouTube algorithm only flagged seventeen of sixty-two for potential copyright infringement of content owned by Lionsgate, Sony Pictures, Warner Bros. Entertainment, Universal Pictures, MGM, and Paramount Pictures, among other corporations. Because we removed the soundtrack from all clips that were not used to analyze sound, all but one content match was video-related. In fifteen of these cases, the videos remained public (i.e. visible and discoverable) in every country, but were deemed ineligible for monetization (meaning the copyright holders received any shared advertisement revenue earned by the video).[12] These restrictions presented no problem for us because our current funding model is not based on user-generated revenue. But for individual instructors, departments, or institutions interested in monetizing their channels to potentially recoup production costs, for example, the number of contested cases could quickly become more numerous and potentially unwieldy.

Two Audiovisual Lexicon entries, both dealing primarily with sound, were regrettably blocked entirely: “Non-Diegetic Sound” and “Invisible Music,” which incorporate excerpts, respectively, from Meghe Dhaka Tara (aka Cloud Capped Star, 1960) and The Bridges of Madison County (1995). YouTube’s system supplied no explanation why the copyright holders (Home Screen Entertainment and Warner Bros. Entertainment, respectively) blocked the particular use of these clips. One of the co-editors, Vincent Longo, filed disputes only for the blocked entries explaining in detail how the videos aligned with the four factors of fair use. To our surprise, they were denied without explanation, as was the appeal Longo filed subsequently for one of the videos. Because losing the appeal resulted in one “strike,” a second “strike” to the departmental YouTube account would have put the entire channel at risk of termination. Unblocking the videos and removing the “strike” will likely require filing a DMCA counter-notice, which would involve consulting with the Office of the Vice President and the General Counsel, which is a step we do not wish to take at this time.

Unfortunately there is no algorithm for fair use, nor is there a straightforward checklist or litmus test that guarantees content creators that their work falls within fair use guidelines. But, there are also few known cases in which copyright holders have sued academic audiovisual essayists of any kind, and in the one known case, the copyright holders lost.[13] But, audiovisual essayists and instructional content creators like ourselves should be aware of some of the ways that YouTube’s algorithmic Content-ID system can heighten potential risks by automatically flagging and making visible one’s (transformational) use of intellectual property to entities holding copyrights on the audiovisual material cited. Many of these risks can be avoided (although not eliminated) by instead uploading the same content on other websites, like Vimeo. As a test, we uploaded the two videos blocked on YouTube to Vimeo and both videos (here and here) are still available without restrictions. Still, if one has the time, resources, and luck to mitigate YouTube’s high risk of inhibitions, they can enjoy its wide network of users and methods of discoverability—the ideal situation for teaching and learning.

The Audiovisual Lexicon would not have been possible without the generous support of LSA Technology Services and the Department of Film, Television, and Media at the University of Michigan, especially Monika Dressler, Andy Holman, Shawn Jackson, Yeidy Rivero, and Lisa Rohde-Barbeau. The authors would also like to thank Justin Bonofiglio and the University of Michigan Library Copyright Office for guidance with intellectual property questions and for encouraging us to exercise fair use in our audiovisual pedagogies. Prospective contributors to The Audiovisual Lexicon are invited to contact the co-editors, vilongo@umich.edu and mpsolo@umich.edu.

Vincent Longo is a doctoral candidate in Film, Television, and Media at the University of Michigan. His published and forthcoming work in The Moving Image, Screen, JCMS Teaching Dossier, and several anthologies focuses on multimedia theater, New Hollywood authorship, archival studies, and audiovisual essay pedagogy. He received the University of Michigan’s Outstanding Research Mentor and Outstanding Graduate Student Instructor awards for work teaching audiovisual essays and archival research to undergraduate students. He is co-authoring a book (under-contract with the University of Michigan Press) about the anti-fascist and racial politics of Orson Welles’s unmade adaptation of Heart of Darkness. The online edition of the book will also supply digital access to pertinent archival materials at the University of Michigan Special Collections Research Center. Vincent’s dissertation, for which he received a Robert De Niro Endowed Fellowship from the Harry Ransom Center at the University of Texas - Austin, explores the role live performance in American movie palaces played in shaping celebrity culture, spectatorship, race relations, and film production during the Hollywood studio era (1925-1950).

Matthew Solomon is an associate professor in the Department of Film, Television, and Media at the University of Michigan. He is the author of Disappearing Tricks: Silent Film, Houdini, and the New Magic of the Twentieth Century (University of Illinois Press), winner of the 2011 Kraszna-Krausz award for best moving image book, and of a monograph on Chaplin’s The Gold Rush for the BFI Film Classics series. He is the editor of Fantastic Voyages of the Cinematic Imagination: Georges Méliès’s Trip to the Moon (SUNY Press), for which he produced a critical edition DVD, and is currently completing a book on Méliès and material culture prospectively titled “Méliès Boots.” He co-edits two book series: “Cinema Cultures in Contact” for the University of California Press and “Out of the Archives” for University of Michigan Press.

    1. The theory of fair use is outlined in Section 107 of United States copyright law.

    2. Society for Cinema and Media Studies, “Fair Use Policies,” https://www.cmstudies.org/page/fair_use?; The Center for Media and Social Impact has other best practice guides for fair use: https://cmsimpact.org/program/fair-use/. Many discussions of fair use for media studies teaching and scholarship have centered on the audiovisual essay form. See, for example, Suzanne Scott, “Teaching Transformativity/Transformative Teaching: Fair Use and the Video Essay,” Journal of Cinema and Media Studies Teaching Dossier 1, no.2 (spring/summer 2013), https://www.teachingmedia.org/teaching-transformativitytransformative-teaching-fair-use-and-the-video-essay/; Jason Mittell, “Fair Use for Videographic Criticism,” JustTV, blog post, January 8, 2016, https://justtv.wordpress.com/2016/01/08/fair-use-for-videographic-criticism/; Steve Anderson, “Fair Use and Media Studies in the Digital Age,” Frames Cinema Journal 1, no. 1 (2012), online, http://framescinemajournal.com/article/fair-use-and-media-studies-in-the-digital-age/; and Eric Faden, “A Fair(y) Use Tale,” Online video, 2007, http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale. See also Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (Chicago: University Of Chicago Press, 2011).

    3. For more information on our use of audiovisual essays for teaching see, Matthew Solomon, “Audiovisual Pedagogies. Introduction: The Inexhaustible Text,” Screen 60.3, 2019, pp. 449–454; Vincent Longo, “Essay Production as Media Production: Methodologies for Teaching and Creating Audiovisual Scholarship,” Screen, 60.3, 2019, pp. 455-465; Vincent Longo, “Relative Radicalism: Creating Formally Experimental Audiovisual Assignments Grounded in Argument,” JCMS Teaching Dossier, 5.3, 2019.

    4. We shot most of the entries in a hotel suite during the 2019 SCMS Conference, and postponed shooting more than fifty additional entries we had scheduled to shoot during the 2020 SCMS Conference when it was cancelled. Most additional shooting has been deferred to the next in-person SCMS Conference.

    5. Vimeo is also the chosen platform of audiovisual essayists and desktop documentarians like Kevin B. Lee. Neither Vimeo nor YouTube is technically sustainable, as their terms of use both stipulate they can remove videos without notice or reason. Nonetheless, both sites migrate, transcode, and update posted videos so that videos will always play as long as the sites exist. For example, the first video posted on YouTube is still watchable on the site fifteen years later: https://www.youtube.com/watch?v=jNQXAC9IVRw&vl=en

    6. For other differences between YouTube and Vimeo, see “YouTube vs. Vimeo: What’s the Difference?,” https://www.techsmith.com/blog/youtube-vs-vimeo-whats-the-difference/

    7. For most content—and certainly most audiovisual essays which use already compressed video files—the difference in video quality between Vimeo and YouTube is negligible.

    8. “YouTube for Press,” YouTube, https://www.youtube.com/about/press/; Craig Smith, “20 Vimeo Statistics and Facts (2020),” July 1, 2020, https://expandedramblings.com/index.php/vimeo-statistics/; Bharath Sivakumar, “YouTube Vs. Vimeo: A Detailed Comparison,” https://www.feedough.com/youtube-vs-vimeo/.

    9. Vimeo’s examples of “obvious” infringement include: “rips of movies, television shows, and music videos, or a complete song playing in a video with a blank background or minimal visuals.”

    10. For more information on YouTube’s intellectual property policies and how to mitigate the pitfalls, see the Electronic Frontier Foundation’s “A Guide to YouTube Removals,” https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals; Sarah Clough-Segall, “YouTube’s Copyright Policy: Pitfalls Aplenty for Video Creators,” JDSupra, October 13, 2020, https://www.jdsupra.com/legalnews/youtube-s-copyright-policy-pitfalls-23119/?origin=CEG&utm_source=CEG&utm_medium=email&utm_campaign=CustomEmailDigest&utm_term=jds-article&utm_content=article-link.

    11. See “‘YouTube Content-ID Abusers Could Face Millions of Dollars in Damages,” TorrentFreak, May 10, 2019, https://torrentfreak.com/youtube-content-id-abusers-could-face-millions-of-dollars-in-damages-190509/. For a discussion of how digital platforms perpetuate the suppression of content due to ostensible copyright infringement see Katrina Geddes, “Meet Your New Overlords: How Digital Platforms Develop and Sustain Technofeudalism,” Columbia Journal of Law & the Arts 43, no. 4 (2020): 455-486; Franklin Graves and Michael Lee, “The Law of YouTubers: The Next Generation of Creators and the Legal Issues They Face,” Landslide 9, no. 5 (May/June 2017): 8-55.

    12. Two of the videos blocked from monetization, one including clips from The Graduate (1967), and another including clips from Twilight (2008) were also blocked from playing on mobile devices.

    13. Mittell, “Fair Use for Videographic Criticism.”