let's add MGM to the lame list
They sent a takedown notice to YouTube over the “Baracky” video. It pisses me off when a company whose livelihood springs from the freedom of expression sics its lawyers on someone clearly exercising their First Amendment rights — not to mention someone who does so in an exceptionally talented way.
“Baracky” is clearly — clearly — defensible on fair use grounds.
Let’s go through the four factors together, shall we?
1. Purpose and Character of the Use. Satire. Generally, satire gets less protection than parody, but, as we all know, footnote 14 of Campbell v. Acuff Rose acknowledges that some satire may be protectible if the other factors in the analysis weigh in its favor. So let us continue.
2. Nature of the Copyrighted Work. A movie that was released theatrically 32 years ago, and which has been on home video in some form or another since the early 80s. You get a better fair use claim if the copyrighted work is published, as opposed to unpublished. I’m thinking Rocky counts as “published.” However, fictional works get more protection than factual ones. But however however, Rocky has become an iconographic statement of American culture, which makes it much more attractive as a metaphor for any commentary on U.S. politics. I think this round goes to “Baracky.”
3. The Amount and Substantiality of the Portion Taken. Um, like 3 minutes. So, 2.5% of the 120 minute film. This round goes to “Baracky.”
4. The Effect of the Use Upon the Potential Market. You know, I was going to rent Rocky from Blockbuster last week, but I chose not to because “Baracky” is free online and it really tells the exact same story. (I think this is an appropriate “NOT” moment — is that back in the pop vernacular yet?) Give me a fucking break. And did the producer of “Baracky” make any money off his viral hit? I imagine not so much. This round goes to “Baracky.”
In conclusion, fair use, fair use, FAIR. USE.
What’s even weirder about this whole thing is that Mary Parent, the Chairwoman of MGM, maxed out her political donations on Barack Obama this year, and gave nothing to Hillary Clinton. So whoever on MGM’s crack legal team asked YouTube to pull the video is doubly blunderiffic.
So, YouTube — PUT IT BACK UP.