Zennie62 Wins Selfie Train Video Fair Use Argument Over Jukin Media

Zennie62Media has won yet another fair use legal argument over a company that takes advantage of YouTubers who don’t know their legal rights: Jukin Media. This is the 14th DMCA issue that Zennie62Media, and Zennie62 on YouTube, has won in the on-going battle between those respect Fair Use law and the right to report news, and those who do not.

In the case of Jukin Media, the very business model of the company depends on a video goes viral, else, they would not seek a business relationship. What Jukin Media (or “JM”) does is represent the maker of a viral video in such a way as to protect their work from copyright violations. That is “fair” enough, but JM takes the whole deal a giant step further, and works to violate the rights of those who might use a portion of a video in the expressed, and obvious action of reporting the news.

In my case, Jukin Media filed a DMCA Copyright Violation Claim with YouTube. The result was the placement of the video in “hidden” status (it’s not removed, but you can’t see it, and I can’t either) and a copyright strike against my channel. I take such DMCA Copyright Violation Claim actions as an act of legal and public relations war, and I fight relentlessly to win and get the strike removed. I will stop at nothing. And for good reason: three strikes and a YouTuber could lose their channel. The problem is that, all too often, false or legally weak DMCA Copyright Violation Claims are filed against YouTubers who don’t know what to do. In some cases, the YouTuber is in his or her teens and unfamiliar with the law, thinking that some roughneck will knock on their door.

Not so.

I stand a fight to give those YouTubers a “Northern Star” to look to when they are in such a spot, and don’t know what to do. I’m proud to note that I scored another victory.

How I Won

First, I took notice that Jukin Media never defended fair use, and so planned an attack on its online reputation, informing all of their many attempts to ignore and violate fair use law. The result, as of this writing, is that if you go to Google Search and type “Jukin Media Fair Use” you will see nothing but content I created telling you that Jukin Media’s acting as an enemy of fair use law. Why do they do that? Because Jukin Media’s trying to collect as much money as it possibly can, for it’s client and for itself. The startup could work to not get itself in this situation, but by it’s actions and words, doesn’t do that – so here we are.

See this:

Second, what JM failed to note was that the very act of take on a viral video maker as a client means the famous “four factors” Fair Use legal test would work against it.

First, here’s the test according to Stanford University:

The purpose and character of your use
The nature of the copyrighted work
The amount and substantiality of the portion taken, and
The effect of the use upon the potential market.

Of all of the factors, or tests, it’s the last one, “The effect of the use upon the potential market,” that Jukin Media has no standing in. In that case, the reason is that as the video has already went viral, and been seen by many thousands, and generally millions of viewers, Jukin Media can’s claim the “potential market” was impacted, because the video already reached its potential.

The Filed DMCA Counter-Claim

Here’s the filed Zennie62MEdia DMCA Counter-Claim

Allegations of Copyright Violation / Digital Millennium Copyright Act

The claims of copyright violation should be rejected because:
1. The material in question is not protected against the “fair use” provision of the copyright regulations as defined in 17 USC 107. Indeed, the video created by Zenophon Abraham contains only enough of the material in question to be necessary for news commentary as it was designed with the “fair use” provision in mind. The original material in question is an 11 second video, of which I had to use a portion of to show that the person who made it was, indeed, kicked in the head by the train operator. Moreover the maker of the video has been on television, on a show called “First Video” and allowed the network to show the video and run commercials against it, teasing that they were going to show the video, then running commercials before they did so. That’s a clear allowance of fair use legal rights by a news organization. The maker of the video can’t pick and chose who’s providing news, and who is not. Fair use law does not have a provision for prejudice.
2. YouTube did not evaluate the complaint by Jukin Media with respect to the “fair use” legal provision, thus did not subject Zenophon Abraham’s video to the “four factors” fair use legal test that is supposed to be applied when determining if fair use law applies:
1) Was it transformative? Zenophon Abraham’s video is a 1 minute, and eight-second analysis of the action of the video maker to determine if he was kicked in the head. At the end of the video, I say that the video maker should have turned the video camera around so that we could see what train it was, and he could contact the train operator. In short my video, by conducting a news commentary and analysis, including a slow-motion study of the action, becomes a transformative work. It’s over 10 times longer that the original, and 12 times longer than the part of the video that was used.
2) What was the nature of the copyrighted work? The disputed item is just 8 seconds of video, yet the owner is trying to claim my entire video, which includes my voice-over and commentary. YouTube must have a system that prevents this; it should not be either-or, but for the present, my voice and visuals belong to me, and not to Jukin Media.
3) Was a substantial amount of the original video taken for use? This is not an issue of a substantial amount of a video used, simply because the video itself is such that you have to use 8 seconds of it to be able to do news commentary. Again, the question of “substantial amount” runs up against the very act of legal news commentary. I have to use that part of the video to do the effective news commentary the law allows. Because of the, my video and the Jukin Video fall under the “merger doctrine,” where the idea of the video and its expression are merged and inseperable.  In other words, there’s no other way to make a news commentary on the video, than using part of the video itself. 
4) Does the video effect the use upon the potential market? No. His video has been seen almost 20 million times, and is on television as well. My video did not, has not, and will not impact the market for his video.

As you can see, the argument I submitted, and Jukin Media elected not to challenge, and YouTube agreed with, zeroes in on the fact that the marker was never harmed by the video. Moreover, it’s totally obvious that my video is a news report about the Selfie Video.

I am sharing this in the hope that others will not just copy my argument, but make videos that are truly news commentary. Its totally wrong to, completely wrong, to just upload someone else’s work as if it was your own – my video does not do that at all.

Indeed, my video attempts to look at the details around how the Selfie Video came to be – in other words, who hit the man that was standing next to the train?

Another Take On The Selfie Video

In the middle of the verbal duke-out with Jukin Media, I realized something else regarding the Selfie Train Video: it seems that the man just may have stood next to the train deliberately. In fact, the entire video may have been make up.

Rest assured, it’s not, says the man who made it.

Jared Frank told CTV Saskatoon that he made the video on vacation in Peru. Frank explained he and a friend were trying to get to Machu Picchu and had to walk along a path that took them past several train tracks. For some wild reason Frank elected to stand right next to the tracks. He started making the video, and that’s when he got kicked in the head as the train went by.

From the looks of the video, the train man has a really big foot.

Stay tuned.