Jonathan McIntosh is a remix video artist, new media teacher, and fair use advocate. All of his recent remix projects can be found on his website rebelliouspixels.com . You can also follow him on Twitter @radicalbytes

It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use, transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, and Entertainment Weekly, and it was discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses, and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

This past summer, together with the Electronic Frontier Foundation, I even screened the remix for the US Copyright Office at the 2012 hearings on exemptions to the DMCA. Afterward, my "Buffy vs. Edward" remix was mentioned by name in the official recommendations by the US Copyright Office (PDF) on exemptions to the DMCA as an example of a transformative noncommercial video work.

“Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth.” —Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube’s system, filed a DMCA takedown, and had my remix deleted for “copyright infringement.” Below is a brief chronicle of my struggle to get "Buffy vs Edward" back on YouTube where it belongs.

On October 9th, 2012 I received a message from YouTube stating that "Buffy vs Edward" had “matched third party content” owned or licensed by Lionsgate and “ads may appear next to it.” Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

I always turn all ads off on my remix videos and never profit off them. But sure enough, when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over my gender critique of pop culture vampires. Incidentally, this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones because they are not "monetized platforms."

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes that I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

Less than 24 hours later, however, I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive pop-up ads.

Concerned at what appeared to be a blatant disregard for fair use previsions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1,000 word legal argument citing case law and explaining how "Buffy vs Edward" was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount of copyrighted material used, and market effect. YouTube’s built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

On November 26th, 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had “matched third party content” owned or licensed by Lionsgate and that ads may appear on my video. Wait, what? Deja-vu. Hadn’t I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for “visual content” owned by Lionsgate and the claim I had just fought and finally won had been for “audiovisual” content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media. Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which lay out very clearly all the fair use arguments. And I waited for a response.

On December 18th, I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but it was still insulting because my video was not infringing in the first place.

Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on YouTube, confirmed in an e-mail to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response e-mail to New Media Rights on December 20, 2012:

The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes [sic] to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via e-mail, despite fair use being raised multiple times. Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational, and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, hearing about the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit, two-lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 pop-up video version of Buffy vs Edward here.