YouTube Changes Fair Use Policy Thanks to Anime-Loving Creator

YouTube Creator
Credit: Rachit Tank
A YouTuber who fought for his rights and a copyright holder who didn’t play by the rules forced a change to YouTube's “fair use” policy.

And that means your videos may be protected in one country, while taken down in another.

YouTuber Mark Fitzpatrick (AKA "Not Totally Mark") received over 150 copyright claim notices recently by Japanese Anime company Toei Animation, the creator of the classic animated series Dragon Ball Z. 

For the past three years, Fitzpatrick’s channel has been largely centered around reviewing anime programs and movies, and he was faced with seeing his channel potentially terminated overnight and losing his audience of 700,000 subscribers. It was a rude awakening. 

To make matters worse, nearly half of the videos that Toei was claiming copyright on didn’t have anything to do with their intellectual property, other than being an inspiration for learning how to draw anime characters in a how-to fashion.

Fighting Back

Fitzpatrick decided he wasn't going to take things lying down and appealed to YouTube, stating that his videos relied on the legal concept of “fair use,” which enabled him to show brief clips of the programs he was talking about.

Toei disagreed, stating that Fitzpatrick’s use of their intellectual property was against Japanese copyright law.

After several emails and videos talking about how unfair YouTube’s takedown policy was, a high-level YouTube executive took Fitzpatrick’s side after looking at his content. 

YouTube agreed that Fitzpatrick’s videos may qualify for a fair use exemption under existing law and requested that Toei provide more information as to why each of the 150 videos violated their IP. 

And here is where things get weird.  

Playing by Different Rules

Rather than following YouTube’s request and providing more information, Toei Animation decided to get clever and violate YouTube’s appeals policy. 

“Toei broke YouTube’s policy,” said Fitzpatrick in a recent video, “and instead of responding to YouTube’s request for justification, they instead used their own tools to manually claim and block all 150 videos behind YouTube’s back. Effectively accomplishing the same goal without taking down my channel.”

The irony here is that had Toei played fairly and worked within the system, chances are that Fitzpatrick would’ve lost his appeal and his channel. 

But since they decided to get clever and work outside of YouTube’s appeals process, the site ruled that while airing the videos may be against Japanese law, a market Fitzpatrick wasn’t even targeting, they would be okay to air in the rest of the world.

Seeking to maintain their policy of being a safe harbor for content creators, YouTube sought to mediate an understanding between Toei and Fitzpatrick, which stated that all 150 videos would be blocked from airing in Japan while being freely viewed in countries like Fitzpatrick’s home nation of Ireland, the UK, and the U.S. 

The Future of YouTube’s Fair Use

Toei viewed Fitzpatrick as a pirate no different from those seeking to air their programming without permission or consideration, and as such, refused to budge. 

This left YouTube in the unenviable position of having to choose a winner, and they chose to block the videos in Japan, but give Fitzpatrick the freedom to post them everywhere else in the world. A first for the video site.

The result is that YouTube will now consider the region of the copyright claimant, and if that nation has fair use laws in place, they will apply. It will also allow them to seek legal remedies outside of their region if the country doesn’t allow for fair use and YouTube merely blocks airing where that is the case.

The TL;DR (too late) of it is that Fitzpatrick gets a much-needed win for his channel and creators around the world. Unless, of course, Tori’s lawyers decide to tie him up in court. Only time will tell.

What do you think of all this?     

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Your Comment

7 Comments

Fair use is the new norm. Sorry old world, this is the new world.

February 12, 2022 at 9:49AM

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Noah Leon
Filmmaker @ Moosefuel Media
524

Not only that, but public perception and the “cancel culture” has changed the way that brands should be considering copyright issues. I can’t see how someone reviewing your copyrighted content or making artwork based on it hurts your sales. If anything it would increase awareness and essentially work as free advertising. Not only does this type of legal action remove that free advertising, it additionally sours the public to your brand, as the majority of people will take the side of the independent YouTube creator over the corporate legal team, and it just sounds like a lose-lose overall to me, from a brand perception perspective.

Let fans reference your brand as long as they’re not stealing sales from you. It’s a win in today’s social media world.

February 17, 2022 at 11:08AM

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Ryan Toyota
Graphic Designer / Typographer / Video Editor
1093

Vimeo gave me trouble with some old, public domain, non-copyrighted archival material from the 1930s - 40's. They said they don't allow rips or material that was not created by the person.

https://archive.org/search.php?query=Vimeo+Censorship+Video+Removal+Noti....

Vimeo removed it within an hour.

https://archive.org/search.php?query=Christmas%20eves%20teoli

And it was not removed due to content. I have some ancient, vintage XXX porn and other nudie cuties at Vimeo...but they were done years ago.

Well, maybe that is our future? I hope not. Everything I deal with as an archivist was created by someone else.

February 17, 2022 at 11:04AM

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Daniel D. Teoli Jr.
Experimental Filmmaker
74

Glad he prevailed (for now, at least).
My HUGE gripe has nothing to do with the story, but rather No Film School's horrible advertising bombardment. I could barely read the article because there were so many intrusive pop-ups constantly scrolling the article up and down. Geez Louise, can't they at least stick to stationary ads???

February 17, 2022 at 11:37AM

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Thank You, Jay Blake.
It's pretty obvious who the "Good Guys" are in this copyright battle.
It's also obvious that No Film School needs to monetize. But web pages have become painful to read.

February 17, 2022 at 3:28PM

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henbc
Amateur Vacation Video "Guru"
10

Related, Howard Stern has tried to stop people from posting his stuff on YT, but as the years go on there is even more, and all in different edits. Recently someone I think in the Far East, put together many 3 hour clips from Wig's pay tv show in 2007. They are from the Artie days, so I skip them seeing Artie was a mistake for the show.
But, some old 8 hour compilations of Sterns show has been on for many years. Howard even has videos on adult sites where his stuff is uncensored.
But, it is hard to stop. See: Streisand effect.

February 20, 2022 at 2:06PM

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DCO20
18