Since Sakura-con‘s release of their promotional commercial to YouTube, a lot of buzz, both positive and negative, has swept across the Internet.
On top of the initial reactions in pure text (such as the video’s 2000+ comments as of the publication of this article), even Anime News Network’s Chicks on Anime picked up on the fandom’s backlash.
As much as anyone would like it, I’m not here to discuss the fandom or whatnot. Instead, my interest lies in a connection to a project that I’m helping out on and blogged about before: YouTomb, a project through the Students for Free Culture group at MIT where we look at the takedowns on YouTube.
The tale I will relate has already been told numerous times across the blogosphere. Little Kuriboh, a video producer on Yu-Gi-Oh!: The Abridged Series. He, as well as many other creators on YouTube, made spin-off productions of the Sakura-con commercial. The commercial seems to have caused quite a ruckus over at 4chan and even made it into the Encyclopedia Dramatica, which catalogues most of the memes and miscellaneous “creativity” that occurs on the 4chan boards. On top of the multiple mashups available on YouTube, LK decided to post his own version of the commercial, entitled GUHROOGAMESH!!!1, onto the video site, which parodied the commercial’s audio using clips from the Yu-Gi-Oh animated series. Eventually, the video was removed by YouTube.
Recently, a new version has popped up on YouTube:
However, if this is also eventually removed, Omonomono has indexed links to the video, one available on Nico Nico Douga (ニコニコ動画, known as the Japanese equivalent of YouTube) and another on MegaUpload (if you don’t have an account for the former).
Questioning why the video was taken down, YouTomb has named the cause (which of course can also be discovered when visiting LK’s video’s original page on YouTube, above): a copyright claim by Asia Northwest Cultural Education Association. On 25 March 2009, the video was taken down, a mere week after it was uploaded (18 March 2009).
The association’s website states: “The Asia Northwest Cultural Education Association (ANCEA) is a registered non-profit corporation. Every year, ANCEA participates in various cultural and educational events. Sakura-Con is ANCEA’s main event and realization of the ANCEA mission to educate about Asian Culture, with a focus on Japanese Animation.” Clearly the Sakura-con commercial, produced by voice actor Vic Mignogna (most famous for his American dubbing of Edward Elric from Full Metal Alchemist), is an attempt to gather people to the convention; however, it seems that LK saw it as a “miseducation” about Asian Culture, hence an inspiration for the parody.
As previously stated, the video was removed from YouTube via a DMCA claim. LK created an alternative video in reaction to the takedown, which he titled “1!!!HSEMAGOORHUG,” and uploaded it to YouTube. However, he later removed it, according to the video’s YouTube data, on his own terms. Ravegrl, over at WordPress, neatly records a set of screenshots of the second video, complete with the edits that LK made to the video to avoid re-censorship by the ANCEA. This second video clearly parodies even the first, such as one instance of subtitling: “This joke is no longer available due to copyright claim by Asia Northwest Cultural Education Association.” Some of the audio was muted to avoid a potential Content-ID check, replaced with different lines to continue the parody-of-a-parody, referencing the YouTube Poop genre of comedic (or random, given your taste) video mashups.
There are two critical points at which we must approach copyright for Little Kuriboh’s video parody.
Point 1: Parody versus Satire
Not well known is the distinction between parody and satire.
Merriam-Webster Online defines parody as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule” and satire as “a literary work holding up human vices and follies to ridicule or scorn.” Basically, the difference comes down to satire as criticism of something outside the original work (generally the human condition), while parody merely criticizes the original work (criticism, here, may be positive or negative, though in the case of satire it is usually the latter).
The problem with parody and satire is that the law distinctly distinguishes between the two. In their paper entitled The Satire/Parody Distinction in Copyright and Trademark Law — Can Satire Ever Be a Fair Use?, Juli Wilson Marshall and Nicholas J. Siciliano state, “The Court creates a fair use dichotomy between parody and satire. After concluding that parody could be considered fair use, the Court quickly qualified its holding: if the new work “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh,” the work is less transformative, and other fair use factors, such as whether the new work was sold commercially, loom larger. Id. at 580.”
Clearly LK’s “GUHROOGAMESH!!!1″ is a parody. It mimics the original audio while adding new audio clips and utilizes a new video style. The issue with the Sakura-con commercial, however, is that the video can be taken as a satire of the anime fandom in America. Therefore, LK’s parody video may be construed as a continuation of the assumed satire. Thus, a judge in the court could twist the DMCA claim to support the ANCEA, justifying the YouTube removal.
Point 2: Copyright versus Protection
In an email exchange between me and LK, he writes, “The truth is, they WERE out of line taking my video down in the first place for bogus reasons, but they later contacted me and explained the situation – that their site was being flooded with pornographic spam as an inadvertant result of my video’s content. They have told me that they liked the video, and if I made certain alterations, they would have no problem letting me put it back up. Being a reasonable person, I agreed to those conditions.”
As LK recounts, the issue of the takedown does not revolve around copyright, but instead a problem with “pornographic spam.” Although the audio content of the parody video and the associations with 4chan may have caused the spam, the fundamental matter in question of the YouTube removal revolves around the ANCEA’s use of a DMCA-related takedown when it clearly does not ultimately apply. I might argue that ANCEA had the right to file the claim, since LK did use Vic Mignogna’s voice-over at the end of his video, but eventually the work would be held up as a parody in a DMCA counter claim. Even LK shared my take on the issue: “I think if there’s a lesson here, it’s that a simple message explaining why the video was a problem was a LOT more effective than having the video deleted for silly reasons that don’t really apply.”
The concern for me, and probably the rest of the YouTomb team, is that a copyright claim can be used to remove a video from YouTube without an actual copyright violation. Currently YouTube allows for three methods of removal:
1) Terms of Service Violation
2) Content-ID Removal
3) DMCA Takedown Notice
(via the Electronic Frontier Foundation)
Avoiding of course the possibility that anime music videos and related media may violate copyright (Lawrence Lessig would argue no, given certain stipulations)… While we have ruled out #3 and stated the possbility of #2, why did YouTube not remove the video by quoting method #1? Taking a look at the transcript of LK’s first parody video (via Yu-Gi-Oh! Wikia), it might be argued that his material is not suitable for YouTube’s general user base. YouTube’s Community Guidelines reads, “YouTube is not for pornography or sexually explicit content. If this describes your video, even if it’s a video of yourself, don’t post it on YouTube. Also, be advised that we work closely with law enforcement and we report child exploitation. Please read our Safety Tips and stay safe on YouTube.” These guidelines reflect the law written in the Children’s Internet Protection Act (following the Communications Decency Act and the Child Online Protection Act), which was signed into law in 2000 and upheld by the Supreme Court in 2003. Clearly the statement is aimed at video and audio of pornographic situations to protect minors (in the sense of minors viewing and/or being recorded in the material), but it may be applied to the GUHROOGAMESH!!!1 video all the same. The real question remains: Why, or really how, does YouTube allow someone to claim copyright with a purpose not related to copyright? And how many other instances have there been?
It seems that for now the whole affair has died down, even over at 4chan (which Encyclopedia Dramatica describes as a joke thoroughly killed and buried). But this is one instance of a strange use of “the law” as YouTube sees it and, really, dictates it.
The fact that they used the DMCA/youtube takedown like this still rubs me the wrong way.
And I’m still very skeptical about their porn claims.
The video was in direct violation because of the audio clip taken from the commercial at the end of the video. When tying that in with the fact that Sakura-con is strictly a family friendly convention, one could almost argue defamation. Sakura-con does endorse pornographic content and by using official sound clips from the commercial, it could lead viewers to believe that this content is approved and endorsed by Sakura-con and the ANCEA. Even attendees have been in trouble over using logos, mascots, etc. to promote the convention without permission of the Publicity staff. It’s not their property to use, nor was the sound clip for LK. No one was out to bring him down. If he had done a mock-up of the clip and spoofed the name (calling it Salura-con or something similar) there would be no issue.