Copyright For YouTube Creators With A Real Lawyer

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Copyright feels like a maze until you learn what creators actually control and what platforms control the moment you upload. We break down fair use, claims, strikes, DMCA takedowns, and the new AI grey zone with entertainment lawyer and former touring musician Paul Quinn. 
• why copyright exists automatically once work is fixed in a tangible medium 
• how leverage shapes every contract from record deals to YouTube terms 
• what rights you license to platforms when you upload original content 
• why fair use is a defence that only becomes real in court 
• what “transformative” means for reaction videos and commentary 
• the difference between copyright claims, blocks, and strikes 
• how the DMCA safe harbour drives fast takedowns without deep review 
• the four-factor fair use test through the Ethan Klein case 
• why registering copyright changes damages and attorney fee leverage 
• how aggressive rightsholders treat reactions differently across artists 
• what to do about weaponised takedowns and bad-faith notices 
• how AI-generated work affects copyrightability and ownership 
• why deepfakes and voice clones may be better handled via trademark 
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Transcript

AI And Copyright Limits

SPEAKER_02 0:00

Anything created with AI cannot be copyrighted unless there is substantial human involvement. And with all due respect to the copyright office, what on earth does that mean? How do you know when something is fair use? It's when the judge says it is.

Welcome And Guest Introduction

SPEAKER_00 0:18

Hey, welcome back to the only podcast that answers the questions that you don't even know you have. I'm Travis here every week helping you grow your YouTube channel. And today we have uh a subject matter expert I think is really going to be great for so many people because so many people have questions about copyright and don't know where to get the answers. Well, today I've done the impossible. I got a lawyer on the line. Welcome, Paul, to the podcast.

SPEAKER_02 0:42

Travis, thank you very much. I appreciate you having me on here. I hope I can answer some of those questions. You know, people think copyright. Yeah, I bet you do. People think copyright is is an extremely complicated issue, but on a basic level, it's really not. Um, but we all have to remember that those statutes and laws are written by people who want to make them impenetrable. So hopefully we can penetrate a little bit of basic copyright for your listeners and watchers today.

SPEAKER_00 1:11

I love it. And if you're new here, we help you grow your YouTube channel in so many different ways. Sometimes we answer your questions, a lot of times we interview other creators. And today we're we're we're gonna educate you in a very easy to understand way. So if you're listening to the audio podcast, there's tons of notes in the show notes. And if you're listening or if you're watching on YouTube, of course, a lot of information will be in the description below. All right. Paul, I need you to introduce yourself. Who are you? What do you do? Why do we why should we believe you? Who are you?

A Musician’s Worst Contract Lesson

SPEAKER_02 1:38

Okay, well, I don't know if there is a reason to believe me. Um uh, but my name is Paul Quinn. I am a practice leader at the law firm of Darrow Everett in entertainment law. Um, I have a long history in entertainment law. I've been a practicing lawyer for uh scarily 28 years. Wow. Um, but I was late in going to law school. So I was a um recording and touring musician for many years, um, signed some terrible deals, uh, had no understanding of the way contract law worked. And so I ultimately went to law school in my early 30s to help other musicians and content creators not make the same dreadful mistakes that I made as a young musician. And I do mostly work in the music space, but I will tell you that you know, no musician can be successful in 2026 without an understanding of how social media works. And so many of my musician clients become not just rights holders, but also content creators. And I think it's important at right at the beginning to distinguish between those two groups of people. So there are many content creators who use the content created by the people that own those rights, and that's what they have to be careful of. And then, of course, the content creators that are entirely original in what they upload, they need to understand copyright too, because that's how they can protect their creation.

SPEAKER_00 3:10

Absolutely. And that's we're gonna go over a lot of that. It's good that you have a music background because one of the things that a lot of content creators use is music. So it's really good that you have that background. Well, let's just get to know you a little bit more. So you were um a musician that signed some bad deals, which is great because I'm pretty sure most musicians have it signed at least one bad deal. Um, what does that mean? What exactly for people who aren't musicians, what does that mean a bad deal? Because I think most people think, oh, you make music, you make money, and that's just the way it works.

SPEAKER_02 3:38

Well, the music industry is a big business. Uh just like social media is a big business, and that business is run generally by people who have much more money than artists and content creators. Everything is done by legal contracts and legal agreement, whether it's an agency deal, a management deal, a recording deal, a touring deal, an endorsement deal, or in social media, for example, uh I would like to ask your viewers and listeners, how many of them have ever read the terms and conditions on YouTube that they ascribe to? How many of them have ever read them on Facebook or Instagram or TikTok? And and the truth is, very, very, very few even bother to look at it. But like it or not, that is a legal uh obligation um for you when you when you sign up for those things. And having a basic knowledge of that is important. But the music space is important because all contracts that you sign in any aspect of life are based on leverage, right? Who has the more power in the contract? And the person with the more power can mandate more onerous terms than the person with less power. The same way, if you if you, for example, let's say you wanted to open your own YouTube channel, you can't write to YouTube and say, send me your terms and conditions and I will redline them. I will make the changes I think are appropriate for me uh to use your platform. Well, it's not gonna happen. Well, if you're signing a management deal or a record deal, chances are unless you already have had a lot of success, you're at the mercy of those people writing the deal. And the deal I signed, aged 18, um, I never took it to a lawyer. I didn't understand it. And um it allowed my manager, the manager of the band, to take 17% from each distribution. And that was the language they used. So what that meant was he took 17% when the money came into him, but then prior to paying each band member, took an additional 17%. So after two and a half years, we ended up in bankruptcy. And he bought a house um in Boca Ratone. So uh um yeah, so there there are bad deals out there, and and you know, it's good to have someone on your side to address those.

SPEAKER_00 6:07

So let's start talking about some of the things that might affect some of our viewers. Uh, I want to start kind of broadly, and I'm not gonna ask very specific questions, but broadly, when you when you use a social media platform, and it doesn't, I'm not even gonna talk about anyone particular. What are some of the things that you're signing away that you might not realize you're signing away? Is there anything that's just off the top of your head, you're like, oh, well, the rights to this are signed away almost universally across social media that you're just not most people aren't aware of?

Platform Terms And Contract Leverage

SPEAKER_02 6:32

Well, well, certainly. If you let's say you're a rights holder, and we'll talk about that first. So let's say you're uploading something that's entirely original to you. Um now, now remember, um can I give a like a prefatory statement before we get there because it might help put things in context. So um when you create something that is original uh and it is fixed in a tangible medium, which is statutory language, all that means is written down, recorded, something you can hold andor see, you automatically are the copyright holder for that piece. Now, we can talk and we'll probably talk later about the advantages of registering that copyright with the copyright office. But nevertheless, you are the rights holder to that piece of original creation that's fixed in a tangible media. When you are the copyright holder, there are certain rights that belong to you and you alone, and that is the right to publish it, the right to distribute it, the right to copy it, the right to make what's called a derivative work, meaning something that's very similar to it or based upon it. These are all rights that belong to the copyright holder. When you upload something to a social media platform, you are giving that social media platform the right to do all those things. So they can distribute it, they can copy it, um, uh, and they can even in some instances, especially with TikTok, is they can create derivative works as well. So normally, while those rights would respond to you, they're rights that people are willing to give up because of the reach the social media platforms have. Um and one of the, I mean, it just talks to the volume of social media and how important it is in our world today, is those platforms are inherently unable to um police and moderate that information. So it, you know, back in the pre-social media days, if you had if you uh wrote a book or wrote a song or created uh a beautiful photograph or a painting all subject to copyright, you could usually police how somebody else was doing something with your stuff. Well, YouTube cannot, none of them can police it. And and that's a really important thing. I I jotted down just a couple of statistics because I think this is pretty interesting. That there are more than 500 hours of video uploaded to YouTube every minute. Yeah, that's 30,000 hours of content added hourly, yes, 720,000 videos a day. Right? Well, it it would be impossible for anybody to police that. I mean, they could solve unemployment in the United States if they do maybe worldwide. Um you know, 1.4 million videos are uploaded to TikTok every hour. That's insane. Facebook doesn't give those uh and Instagram, they don't give that data. Um but there are a hundred million hours of video watched daily on Facebook. Right? So so obviously there is a massive market. Although I will tell you, interestingly, I think the ability to rise above other content creators is very like the problems that people have in the music industry. So pre-digital release of music, um, there was very limited music that was released because it had to you had to have the money to g record it, you had to have a record deal with somebody that could distribute it. Whereas now, you know, there are tens of thousands of self-released songs uploaded to those streaming channels on a daily basis. Right. So the problem is, is there any less quality now than there was before that? No. But it is so much harder to find. And I think that's the problem that content creators have to address. So as they put up their videos and their content on social media platforms, uh, they're desperately trying to be spotted. But really, you know, it's it's the problem is their piece of genius is lost in a sea of mediocrity. And and so how do you get to it? Uh and there doesn't seem to be any formula that's worth anything that says well how something becomes viral. Um, you know, there are there are lots of tips, you know, people sure do love kids, people sure do love cats, people sure do love people falling over, but uh aside from that, um, I don't think there's any piece of magic. You know, you just have to make every piece of content you create original to you and of the highest quality that you you can you can do. And I defer to others on the um repetition of posting. Um that's not something that I I know enough about. But I will tell you, the higher the quality, the better the chance you have of succeeding.

SPEAKER_00 12:00

So let's talk about um there's a there's a rise of faceless channels. So those are channels where there isn't like a visible host, and a lot of those will do uh either commentary or uh will take clips from copyrighted work, which could be like a commentary television channel where they take the best moments of, say, like Hell's Kitchen. You see these channels all over the place. They're doing very well. Um obviously they're taking copyrighted content and then uh kind of uh talking over top of them. This is where people get confused as to what fair use is. People will immediately say fair use as soon as they use something else. And a lot of times it's kind of funny. I'll see actually clip channels do this incorrectly. Well, they'll use large portions of a copyrighted piece and then in the description say, This is this is not intended for copyright. Like that, like that changes anything. Like I didn't mean to copyright, uh, don't copyright claim this because it's fair use, because they don't understand what fair use is. In the most succinct possible way that you can, and though I know there's a bit of a gray area. What is fair use and what does it look like? And I understand this is still slippery, but as best as you can, tell us what fair use is.

What You Grant When Uploading

SPEAKER_02 13:03

I I will tell you that fair use is the most claimed defense to copyright uh um uh infringement. Yeah. But truthfully, that so here's his not the textbook legal answer, here's the practitioner's answer. It's not a very useful doctrine. And the reason it's not a very useful doctrine is because how do you know when something is fair use? I mean, for sure. It's when the judge says it is, right? So um, and that means you've already been sued and raised it as a defense, right? So so in a case now, reaction videos are a big deal on YouTube. And in fact, there's there's um information out there that says people will often prefer to watch the reaction videos than the original videos, um, which is great news for those reactors. But then the question becomes how so you're certainly using material that is copywritten, right? There's no dispute about that because fair use only applies to uh using something that already has a copyright attached to it. So the question is what do you have to do to feel more confident that you have uh um a fair use defense to copyright? Now, fair use traditionally, prior to social media, applied mostly to political commentary and to educational sources. Um fair use within the reactor paradigm essentially involves there's a there's a key word, and it's one of those legal words, but it kind of makes sense. So what the courts are looking at is for some is to whether what you have done is transformative of the original. Are you just using the original um with your face on it to try and generate revenue? Or are you actually making commentary, criticism, uh um, and are you therefore transforming the original piece subject to copyright into something that is yours? Uh and that's why you'll often see on some reaction videos commentators that stop them every 30 or 40 seconds. Now, the more uh the more articulate your comment is, the more likely it is to remain transformative. So, for example, if you're watching a reaction of say um uh a band, a song written by your performed by your favorite artist, if you're stopping to say, um, hey, that was really cool, don't you all think that was really cool? And then you go back into the video, I'm not sure that's transforming it. If, however, you stop it to say, I love the way the video angle here is uh switches from bottom to top, that helps accentuate face. And did you all notice the key change? Uh um so that's transforming, and it's criticism andor commentary, and that is more likely to withstand scrutiny.

SPEAKER_00 16:11

So let's let's talk about what that looks like on YouTube. So there's a couple different things. There's the copyright strike and copyright claim. Copyright claim is strikes are not as common anymore, especially not for music. Um, for television shows, sometimes, but what we mostly see are claims andor blocks. Claims are when um YouTube then sends the money to the copyright owner. This is an interesting part here because this is basically uh the system is so weird. The claimant actually is the arbiter of whether or not this goes through, which is so weird. So if I let's say that you had a video, and I'm explaining this for people who are listening who don't know this. So let's say you had a video, and for whatever reason you commented on a video and I was in it. And I'm like, oh man, this Paul guy's making a lot of money off me. I'm gonna go ahead and claim it. I don't want to, I don't want to block it or give him a strike because he's making, he's getting good views, maybe better than me. I want that money. So I'll claim it. You can uh appeal it, but the appeal goes to me. So I go, no, yeah, I want to keep that going. And the thing is, is the next step is it has to go to uh to court. Like I have to say, I'm willing to go to court over this. Now, a lot of times that will scare off false claimers. Um, but for someone who's an actual um copyright owner, I'm like, no, no, this is mine. I'll go to court over it because I think I'm playing a bluffing game now with the content creator going, you're probably not gonna take me to court. Um and now I get part of that money. In other pla on other platforms and stuff, is that a thing where the the claimant is is not so much telling you you can't use something, but I want the money from it rather than I want you to stop using it. Is that something that's kind of unique to YouTube? Are we seeing that elsewhere? Is that something that was that even predates digital? Or how did that work? It predates digital.

Fair Use And Transformative Commentary

SPEAKER_02 17:55

Um okay, so in the music industry, for example, there's what's called a compulsory license. If I'm gonna cover your song, um you can't say no, right? As long as you've already released it, uh, it's not something that you know you have the uh any creator has the right to first release. So not that. Um, but it it's it's similar in the social media market, but it is weird that it goes back to you. And and that is the way it works on all of the platforms. But here's the thing I think that that is um interesting about it going back to you, because what that relates to is what we talked about before, on the massive number of hours of videos that are uploaded that leaves YouTube, Facebook unable to effectively police it. Because I promise you, if I if you have a video and I believe it's infringing on one of my clients' rights, and I write, I issue a takedown notice to the social media platform, no one is analyzing the nature of my claim or the nature of your defenses. So what they'll do is because of the Digital Millennium Copyright Act, and we'll come back to that because I think that's a really important aspect. What they're gonna do is when I make that claim, is they're just gonna pull it down. And then they're gonna write to you and they're gonna say it's this is temporarily pulled down. Do you agree that you're not the rights holder? Right. If you then respond and say, I don't agree, I think I have a reasonable basis, YouTube's gonna put it back up. Right. And they're gonna say, um uh, if you want to contest this further, you have to go through the courts, and we'll respond to a court. And you know, litigation doesn't serve many people. It's very expensive and it takes a very long time. I mean, I think the average amount of time it takes a copyright case to get through federal court, and this of course depends upon the copyright being registered, but if you've registered the copyright, it takes nearly two years to go through federal court. And the average cost um to prosecute a copyright case is about$150,000. So unless your revenue is massively exceeding that, so that it's a worthwhile business investment, the system doesn't really work very well to your advantage. Um and and yeah, it that no one has the time at these social media channels to actually address these issues, so they take the easiest route out. And and part of the reason for that is under so the Digital Millennium Copyright Act is an act that was designed to protect social media companies from claims of copyright dispute. And so, in its essence, so in the past, prior to that act or prior to social media, if you stole my work and and put it out as your own, and then you then published that in uh a book, I could sue not just you, but I could sue the publishers of the book too, right? So with this massive influx of product on social media sites, the Digital Millennium Copyright Act was meant to protect those social media sites from copyright claims, um it kind of sitting in the role of the publisher. And how it does that is it gives them immunity, a safe harbor from being sued, as long as they act on a complaint within a statutory amount of time. And so if they pull that video down upon being informed that it's a copyright violation, within that statutory peri period of time, they are they can't be sued. And so that's the way it works, and then they just don't have time to do everything else. And then if there's a legitimate dispute under the terms and conditions, they can repost it and leave you to go do your thing in court.

SPEAKER_00 22:00

Yeah, which has happened a couple of times. And one of the more famous um instances of this was Ethan Klein uh with a uh fair use case, and he actually won it. And this was a big deal when it happened because it was the big deal. It's totally a big deal. Yeah. Because it's one of the first times it actually went to uh something like this went to court uh over like a YouTube video. Can we kind of go over uh kind of the high level of what happened and and what that means? Uh you know, just kind of bring it down first.

SPEAKER_02 22:26

I have some I have some notes on it because I didn't want to miscite it. But um uh so it I mean it's the 2017 case, it's um arguably the landmark fair use case. This was a reaction commentary case to a a little uh a little piece, a little, I think a 13-minute short done by Ethan Klein. Um the reactions um were determined by the court. He sued under claiming copyright violation, and the court found fair use. So there are four different criteria that the court looked at in order to determine fair use. So um the purpose and character of the infringing work. So they're gonna look at the reactor's video and say, what are they trying to do? Does it fit within one of these fair use columns of education, critique, commentary? And in this case, they said, yeah, this is clearly fits into one of those categories, but that doesn't get us all the way there. Here it's commentary, and it's it's actually substantial commentary because I've I've never seen that video.

SPEAKER_00 23:35

Sure, sure.

SPEAKER_02 23:36

Um, but my understanding is it was very critical of copyright work. And and the argument is, well, that is the essence of protected criticism. Right. The second category um they look at is the nature of the copyrighted work, right? So is it a piece that is entirely original and associated with the author? In this case, they said yes, it was entirely original and it favored the plaintiff. So if you were in a balancing test right now, the the tita tata would be level, right? It's one each. But then when they look at the third, uh, which is the amount and substantiality of the portion used, you know, it it that's always been a fair use issue, right? So if you're a teacher and you want to copy uh for the benefit of education only a page from a book, that is going to be considered fair use, and that's fine. However, you can't photocopy all 390 pages and distribute them to the class, as that would be a violation of copyright. So here, what they said is there was uh uh they found that that was a neutral issue uh in the case. So we're still we're still at 1-1. Um uh the final factor, though, um was it is about how it impacts the market value and the money that can be generated by the rights holder. And in this case, they said that weighs heavily in favor of the defendants because no one is going to say, well, now I've seen that reaction video, I don't need to watch the film itself. And so when they balanced all those factors, um, they found that the use was was fair and reasonable and constituted fair use. Um also uh Mr. Klein had moved for damages.

SPEAKER_00 25:28

Yeah, how often do you get damages on that? Uh so remember, Mr. Klein was the guy who reacted. He was uh he had been claimed against, and he was like, no, I'm I'm choosing fair use. So just to be clear for people who don't know the story. Okay, so yeah, how often do you get damages?

Claims Strikes And The DMCA

SPEAKER_02 25:42

Well, if you're suing under the copyright statute, under 17 USC, if you're suing under the copyright statute, then that statute allows for um actual damages and statutory damages. And the rate of the statutory damages can go up and down depending upon how willful the actions of the offender was. Um they can add up really, really, really quickly because technically every view of the video is a separate violation. So, yes, statutory damages can be uh very high. Judges usually cap them, uh especially since the advent of social media. So in in the past, when it was music, they would say this guy stole my song and he sold 10,000 copies of it. The judges were usually okay saying each sale is a separate violation. But when you're looking at a video that's got 30 million views, yeah, the judges tend to say, Yeah, well, let's let's not go that way. So um uh but yeah, the damages can be substantial, but you're not getting damages unless you've registered your copyright. Now as um there are still lawsuits you can have, but they are depending upon state law, um, and usually it's for uh tortious interference with business, uh, and and it doesn't have the advantages that copyright has. So um if you have created, let's say you're a very successful creator, um, and you think it would be appropriate to file a copyright for one of your videos or episodes, you should do so. It is not expensive. You can do it online. Uh, you go to www.copyright.gov um and you would be probably be the audiovisual uh um form that you would fill out. And it don't quote me on how much it costs because I haven't looked for a little while. There was a time, I'll tell you, when my job was filing copyrights for people, but it got so easy that I I'm too I feel too guilty to take the money off everyone. So I just tell them how to do it and they go off and do it themselves. But I think it's$45. It might be as high as$75 to register. But even so, yeah. Well, I mean, that only becomes a problem if you decide I've got a thousand episodes and I want to copy all right.

SPEAKER_00 28:11

So maybe just your most important ones, maybe, yeah.

SPEAKER_02 28:13

The one that's probably gonna make the most venue uh revenue or the one that's most likely to be stolen and ripped off. That's why I would strongly recommend going for. Um but once you do it, it does give you certain rights that you don't have in the absence of doing it. Interesting. Remember, I said right at the beginning, it's still your piece is still copywritten as long as it's original. And now with substantial input from a human, and we can talk about AI later if you like. But in a fixed medium, right? Those are those are the points, still copywritten, but once you register, I'll tell you the most important advantage it gives you is not the statutory damages that it does allow a judge to use. The most important thing is it gives the prevailing party attorney's fees. So now, of course, you can't get blood from a stone, so you've got to hope the person that you're suing is financially able to pay your fees. Right. But if I think we talked before, the average cost for prosecuting a copyright lawsuit is approximately$150,000. Yeah. Well, if you've got$20,000 of damages, anyone that's past Business 101 is not going to file that lawsuit. But if you've got$20,000 of damages and if you win, they have to pay your attorney's fees. That's amazing. And they have the ability to pay your attorney's fees, then that lawsuit suddenly is a good idea for you to move forward and protect yourself.

SPEAKER_01 29:41

Yeah.

SPEAKER_02 29:42

So there are big advantages to filing your copyright.

SPEAKER_00 29:45

That's really interesting. Um, back to what kind of we just talked about. There was something in that lawsuit that I was actually going to ask anyway, so it's very interesting it came up. Um so can you react, because this comes up a lot uh on YouTube. Can you react to the entire video? So I know that there's something about the heart of a video, um, which you're not supposed to kind of take from so that you would still want to watch the original video over whatever you're doing with it, right? So you wouldn't necessarily want to. I know spoiler alert uh show that uh Darth Vader was Luke Skywalker's father. I know spoilers like 40 years later, but it's okay. I think I'm fine for that. Um so you wouldn't necessarily want to do that part. However, when you talk about people showing a bit and then stopping to commentate on it, technically you can do that for an entire video, but do you think that would actually stand up? Or do you only take like a certain percentage of a video and say that's probably more safe to use as fair use than if I try to do like 50 or 60% of it?

SPEAKER_02 30:39

Yes. I mean, in a nutshell, yes. The the less of it you use, the more the needle edges towards fair use. But there are thousands, tens of hundreds, millions probably, of videos, especially with artists reacting to music, with content creators reacting to music, where they'll play the whole video or they'll play the whole song. So then the question becomes are you using your critique and comment commentary in such a manner that the video becomes transformative? So in those cases, it's not the number of times you stop it, it's the content of what you say when you stop it. So the question I I would ask content creators to ask themselves is Am I transforming this video into something it otherwise is not? And if they feel like they can answer that, then then they're in a good chance. Now I will tell you, there are also certain bands, artists that police these things in a much more aggressive way. So I don't I've never done this, so I don't know if this is the case. But I bet if you search YouTube for reactions to songs written by the Eagles and performed by Don Henley or Prince or some others, you will find very few. So I I can give you an example. So I I represented and worked with for many years a drummer called John Blackwell, who was Prince's drummer for years, and I um I helped him with his solo album, all his contracts, all his deals, all his publishing. And so I knew the Prince Camp. Um I I have a uh um the coolest kids in the world, but my when my my son is now 21, but when he was eight or nine, we had a little video of him wearing nothing but his little shorts and a little t-shirt dancing around the kitchen um to kiss by Prince. And it was so cute, it was so adorable. I posted it on Facebook. Seven hours later, I got the copyright violation to decide to take it down. So um some people police it more than others. I mean, listen, I I've been doing some work, I just did an interview with them. What my favorite new band of the last ten years is a band from New York called Lawrence. There are hundreds of reaction videos to Lawrence, um, and they're the whole song, and Lawrence's management publishing do not seem to be taking the steps to take it down. Um that could be free promotion, though. There's a lot of ways of looking at it. But you know what? That that's a really good point because for many of these acts, it is free promotion. Yeah, and some of them acknowledge and accept that, and others don't. And I don't want to say the others are dinosaurs, um, but to a certain extent, I don't think they understand the benefits of social media. Now, having said that, is Prince gonna sell more records because there's stuff on YouTube? Probably not. Probably not. Are the Eagles gonna send more sell more? Probably not. But they might, and it doesn't hurt them. Um but also equally, I don't think anyone is saying, well, I don't need to buy that Prince record because I saw somebody talking about it on YouTube. Right. Um But you know, I I I really fall into both camps, Travis. I'm I'm sympathetic for the rights holder because they hold those rights, and for somebody to try and generate revenue or make money off their creativity hits me in my copyright bones, right? So I I I feel for the rights holders, but equally, I think sometimes they're being naive in the advantages that it can get them to allow it to move forward. So I mean, there are many artists that would never have made it without viral videos. That is true. Justin Bieber is came to the show.

The Ethan Klein Fair Use Framework

SPEAKER_00 34:58

Justin Bieber never would have made it without YouTube. Let's talk a little bit about something that uh happens quite a bit, um, or it happens enough to the wrong people, I should say. Um, weaponized claims and weaponized strikes. So, in other words, I'm a person who maybe has a YouTube channel and someone makes a critical video about me and I go and copyright strike the video. Um, this happens a lot. Um and the thing is, it's it becomes web, there's a couple of content creators on YouTube, usually smaller ones, that do this to other smaller or sometimes even larger creators to get them to not be critical of them. If you're if you had a client that made what you perceive to be an absolutely uh fair um use, uh fair use uh video of this person, and you knew that this person had been doing this, and there's documented uh, you know, uh lots of other channels that have been struck by this person inappropriately, would you would you just go to try to get that video um put back up, or would you try to figure out a way to get all the creators that have been affected to because it's a it's a cancer on the platform, in my personal opinion. It's it's cancerous to weaponize uh a something like this for a means that it was never intended for. Like legitimate fair use um critical videos are being struck down. For example, like he'll strike it down because there's a one guy I just saw the other day who's striking critical videos of him down because they showed a picture of his thumbnail. Wasn't even like that they use video of him, just that they showed one of the thumbnails from one of his videos when they're talking about it, and he that's why he struck it. What is your thought on this as a lawyer? Like, do you would you have your client try to go further than just get their video back up, or do you just kind of limit what what it is?

SPEAKER_02 36:43

Well, you know, you you ask a really good question, but I'm not sure there is a really good answer, right? I thought there might not be, yeah. Uh I and I apologize. You know, they say they you always know when you're talking to a lawyer when their answer to a question is it depends.

SPEAKER_00 36:58

But that's sometimes that's the answer. But that is the answer.

SPEAKER_02 37:00

Sometimes that's the answer. So um I I think, first of all, you can't ever rely on YouTube, Facebook, TikTok, social media to do the right thing, right? But just because physically it's impossible for them to do it. And and whether it's a weaponized strike or a general copyright strike, it makes no difference to the DMCA, the Digital Millennium Copyright Act team at those social media. So they're gonna react to it in exactly the same way. Now, sometimes if you know the identity of the um striker, the person that's filed the strike, you can have an attorney send them a letter, right? That they are taking actions which are violative of the Copyright Act. Now, being violative of the Copyright Act is um uh problematic, right? So, because if you haven't registered the video as a copyright, it doesn't apply. But if you have, there is a the the case is called Lens, L-E-N-Z-E, and it's a Ninth Circuit case. Um and again, I've I've got some I have massive files of everything. So me looking through this stuff is not easy to do. So what they stated is that before you file a strike on anyone, this wasn't just related to weaponized strikes, it was related to anything. Before you make a complaint, the complainer must perform a good faith analysis before issuing the takedown notice. Right? So and and if they don't, they can be liable for misrepresentation under the Copyright Act. Right? So the reason I mention that is i i in the the examples you you gave, there is no legitimate reason to take it down. Um and so there has been no fair use. You know, so for example, let's say Channel 9 News wanted to run that story about the complainer. Right. Do you think they would be prohibited from showing his thumbnail picture?

SPEAKER_00 39:17

No, I know that's my point. Yeah, exactly that.

SPEAKER_02 39:19

100% they would not. They could 100% do that. So exactly that. It would still be fair use for that uh um uh reaction video to use it. So sending a letter to the um alleged rights holder saying you're in violation of the Copyright Act Um and will sue you, can be uh enough to have that pulled back. Now the problem with that is often the video isn't copyrighted, right? Often um, which arguably brings it back in under First Amendment standards. Okay um and sometimes you don't know the identity of the person. You know, you've you can and I I don't know, I don't know how other people feel, but I am exceptionally reluctant to send cease and desist letters uh to your YouTube DM box. Right, of course, of course. I don't I don't like to do that. I would rather if my client has enough money to help find out, I would rather use some uh cyber resources to get a physical name and address for that person and then send the letters personally served with the letter. Absolutely. Um being personally served, also, in my opinion, because usually served by a sheriff, certainly here in Florida. That's a little bit more like, oh, yeah, serious. Yeah. I need to think twice before. Yeah, exactly. Yeah, yeah. That's and that that's really the goal. Um but yeah, that that you know, social media is no different than any other business. So just as in the real world, real world, wide world, non-digital business media environment, businesses will try and shut down competitors, so they will on YouTube. The only difference is is social media is a bit more the wild west because it's still a little new. I mean, I I understand that there are generations of content uh uh creators for whom it's not new at all and they've grown up with it. But for oldies like me, um, it's still comparatively new. And and and there is no doubt that the law has not yet caught up. The law is always slow, uh, tends to be reactionary, um and and so that's not terribly helpful. And there's no clearer area that that's the case than in the field of AI.

Registering Copyright And Real Remedies

SPEAKER_00 41:44

I was literally, I'm glad you said that because literally that's the final thing we're gonna talk about. It is we are in a very interesting time. Um, there's a lot of commentary up about AI, and there's a lot of people that feel different ways about it. And we're not gonna talk about whether or not you should feel good or bad about it. We're gonna talk more about what this looks like on the landscape of copyright, because there's things like deep fakes, there's likenesses, now the things that can clone your voice. Like, what can I clone? Can I copyright my voice? Like, if someone wants to make a deep fake of me, can I claim that? Like, we're in a whole weird area where there's like not really laws written specifically for this, and you almost have to interpret things. What are your interpretations of things like deep fakes, sound alikes, lookalikes versus um general copyright law? And where do you see copyright law hopefully moving uh as this starts to continue to get bigger?

SPEAKER_02 42:41

Oh, those are good and smart questions, Travis. Let me tell you. And um uh I'd like to look you right in the eye and say, it depends. But no, there are actually approaches to some of this. So um uh and and some of it is a little bit complicated. So AI is too new. So this is my practitioner's little criticism of the copyright office. And overwhelmingly, I think the copyright folks do a great job. And and they're inundated with work, and it's super uh it I can't imagine the stress they're under to get things done. Um, but I I think the important thing to remember within that context is um copyright doesn't address everything, right? And what they have said, their guidance as of today, is that anything created with AI cannot be copyrighted unless there is substantial human involvement. Interesting. That is the guidance from the copyright office. Okay, and and with all due respect to the copyright office, what on earth does that mean? Yeah, what is that and what they will do is they will leave it to the courts to decide what is substantial um And and that means some people are going to be taking test cases and all the other things. So um, you know, it's it's complicated. Where do you stand on it personally? I I actually well, okay, so I'm probably gonna sound like a Luddite here, um, but uh I agree. So if you actually go back and look at the US Constitution, and uh which is where copyright originates, uh, I mean, it's the only area of law that I traditionally deal in that was considered important enough to be made part of this nation's founding documents, you know. And I think the theory behind that was that great nations deserve great art, and there is less motivation to create less to create great art if your art is not protected. Um so where do I stand on it? I I think I am in agreement that that entirely AI-generated work should not be subject to copyright. Where you draw that line is a complicated question. So, for example, now now don't forget, if you use AI to help you generate a song or a video to go with the song, you can copyright the non-AI parts, but you still can't copyright. So let's say you use AI to write the lyrics for a song that you have written the melody and the parts for, then you can still copyright the melody and the parts, but the lyrics are not subject to copyright. And don't forget what that means is if somebody else likes those lyrics, they can just use them for their material free and clear. I mean, it's just as if they're in the public domain. My problem I have with the way AI is generating right now, and again, this is why I sound like a Luddite, is it's putting musicians out of work.

SPEAKER_00 45:56

Yes.

SPEAKER_02 45:57

So for a lot of people out of work. Yeah, well, that's true. I just only care about the musicians. That's fair, that's fair. Um, but so for example, in a city like Nashville, there's always been two tiers of musicians. Not one that's better, but just two tiers of musicians. So there's the big time guys with the big name that do the final records for the famous Nashville artists. But most of those records start out as demos recorded by a lesser artist or by the songwriter, and there's a there's a layer of musicians that did all the demos.

SPEAKER_01 46:33

Yeah.

Full Reactions And Aggressive Rightsholders

Weaponized Takedowns And Good Faith

SPEAKER_02 46:33

Um, and and that that kind of compartmentalized recording thing in a city like Nashville has been that way for 50 years. Well, now what's happening is the demos are being created with AI. And so all those guys and gals that did the demo work, their amount of work is dropping and dropping and dropping and dropping, and and that's always gonna be a problem. Um but you know that that uh you asked specifically about um uh the videos, the the use of AI to use someone's d you know, pictures, faces. That is not actually subject to copyright, but it is subject to trademark. So you would be able to file a trademark for your likeness and voice, because they are unique to you and you use them in commerce. So there are a number of actors uh on the West Coast that have started doing this. Um now the problem is$45 to$75, right, to file a copyright,$1,800 to$2,200 to file a trademark. But here's the thing you're only trademarking you, and so if you know you think you are likely to be, I mean, no one's deep faking me. All right, I don't I I don't have to stress about that. I'm not gonna do it. But you know, if you are I know I I just read well gosh, I don't know if it was last week, but I read recently that Matthew McConaughey has just done this. Um because how people tend to use those deep fakes if they're being subtle about it, and and this happened before AI, but with impersonators, right? People that did good impressions, is to sell or market a specific product, they will use that person's voice, thereby giving the audience the impression that that person is endorsing that product, and you can't do that. So, uh, but trademark, now there are there are other causes of action, but trademark is more effective, and I'll tell you why. Because if you look at the way TV and social media and radio works, is um that stuff is played in every state of the union, right? If you have a federal claim under copyright or trademark, then whatever order that court gives is going to impact every single state. If you don't have a registered trademark or a registered copyright, you are left filing a lawsuit in all 50 states under those states' laws and how they impact the uh the thing you're complaining about. So it's not really very practicable. Um so yeah, so listen, AI is just listen, we can't hope it goes away. It absolutely is not going to go away. I do believe there's a couple of implosions coming down the line at some stage, which will tarnish it and which may lead people to pull back, but then it will be improved and it will gradually build back up again. So I think it's with us to stay. We just have to learn how to use it. Uh, remember it's a tool, not a substitute. And I'll tell you, in the law, AI is has created huge problems for some people because there's this concept of the hallucination. Yes. Because of how where AI gathers all its material, um, sometimes they'll pull up something that's just not true. Yes. Uh and when that happens, there have been attorneys who have actually lost their license to practice law by submitting to the court briefs containing cases that they found on AI that actually don't exist. Wow. Um, and if you have a judge that wants to check all their sites, you can you can be in trouble. And some jurisdictions, uh uh not Florida yet, but some jurisdictions now um you have to put a certificate at the end of most pleadings you file in court that say you've conferred with the other side. Some jurisdictions are now demanding a certificate to alert the court as to whether AI was used to generate this pleading. Oh, that's actually good. I think it would be great if all music had uh, you know, yes, I used AI written after it. So that way, those of us who are purists and Luddites and and think um Miles Davis is the master of all music, yeah. Um, we can go back to a time when at least we know all these guys are playing their instruments.

SPEAKER_00 51:20

Well, it's nice that YouTube actually does that. They do make you select if you've uh done AI as a as a call out. This has actually been really amazing. Let me just clarify one more time. So you're saying things made with AI do not hold a copyright, they cannot be copyright protected. Is that basically the current uh understanding?

SPEAKER_02 51:38

What I'm saying is the part so in order for a copyright to exist on your piece, you can only copyright the parts that were not generated with AI. And if the whole, if the whole doesn't reveal substantial human involvement, whatever that means, then you can't copyright it at all.

SPEAKER_00 51:59

That's a that's a mic drop moment. What a what a phenomenally interesting conversation this has been. And I've learned a lot. I've learned I've always known bits and pieces about copyright. I have uh a friend that's a copyright lawyer, and uh, but I think I've just learned some stuff here that I I've never heard before. So if you're interested in learning more about this, where can people find you and where where can people learn more about you?

SPEAKER_02 52:19

Well, I am honored to be uh um practice leader and partner at the great law firm of Darrow Everett. We have offices in um Florida, North Carolina, Providence, Rhode Island, New York, and Massachusetts. Um they can find me uh if you look up, my name is spelt with 1N, just to confuse everybody. So it's Paul Quinn with one N. Um you can email me at pquinn at darroweverett.com, or you can jump online. If you put in Paul Quinn and you spell it right, um uh attorney or Paul Quinn Drummer on Google, you'll find many ways to contact me. And and listen, I I love working with creative people, it's the thing that makes me the happiest. Um, and uh I I would welcome um uh any any queries um or help that's needed by anyone that listens to you. Travis, it's been a pleasure to be here. I really appreciate you inviting me um anytime.

SPEAKER_00 53:16

Yeah, and if you need that information, if you heard that and you're like, oh, I'm in a car drive, don't worry. Information will be in the show notes for the audio podcast and on YouTube. I'll put it in the description as well. We want to thank Paul for joining us. Uh, and really to be honest, this would have cost how much if we had done this as a session, if we had called it.

SPEAKER_02 53:32

Well, you know, so hourly rates really, really vary by jurisdiction and by lawyer with experience. So I can give you an example. So I'm located in Tampa, Florida.

SPEAKER_00 53:42

Yeah.

SPEAKER_02 53:43

So my rate is determined by what my market will bear. So let's just say I have the same education, the same clients, and the same legal issues, but my office is in Manhattan or Los Angeles.

SPEAKER_01 54:03

Sure.

Where To Find Paul And Wrap

SPEAKER_02 54:03

My hourly rate would more than double. Wow. So uh, you know, and it's funny, now with this is the great advantage for being a lawyer in the digital age. So I'm I'm quite well known in the music industry, you know, both as a performer for many years, and then people like me because I'm not that lawyer guy, I'm that drummer guy who happens to be a lawyer. So it's very helpful. But, you know, when I would have clients call me from LA and they'd say, What's your hourly rate? And I would tell them my hourly rate, they'd be like, Well, is there any downside to me hiring you instead of hiring someone in LA? Right. No, no, I mean, not really. We've got California licensed lawyers at my firm, they can oversee anything that relates to uh California law. Um most clients don't pay trips to their lawyers' office anyway. Most of it's done by phone and Zoom and Teams. So, what's the downside to hiring me? Nothing.

SPEAKER_00 55:06

So plus you've been on the podcast, so they now know you a little bit better.

SPEAKER_02 55:10

Well, now I'm gonna have to add this to my my resume. A hundred percent. Uh uh spent I'll I'll wrote down spent a quality hour with Travis.

SPEAKER_00 55:19

Well, again, if you want to reach out to Paul, we will have everything in the description in the show notes. We thank you so much for joining us. And if you're new here, you want to hit that subscribe button, and we have a video right here you can watch that I'm sure you're gonna find interesting. We'll see y'all in the next one.