Dragon Ball and Fair Use

[TheGreatness25]

There is only one thing that really catches my eye as to this whole Fair Use/TFS Debate. They say at the beginning of each video that they're not making profit, right? But how can they get around with having a Patreon page to help them "create content"?
$11,000 a month for "editing" somebody else's content sounds like profit to me.

There's a difference between "non-profit" and "not for profit." "Not for profit" means that nobody makes any money and all of the money gathered is used in furtherance of the business. Non-profit means that the organization might make a profit, but that isn't the main goal. Basically one of the presumptions whenever someone opens up a business is that there must be a profit. If there is no profit, it's a huge factor in determining if the organization even qualifies as a business or as a hobby. An organization that uses "non-profit" basically informs the public that while they might make a profit, their ultimate goal is not to make a profit. "Non for profit" means that all of the money raised will not go to the owners, but rather invested into the business (charities, etc.).

[rs_chaosmaster]

From my understanding, Dragon Ball is definitely one of the biggest Anime in the west, if not the biggest. However, the copyright laws in Japan are quite different from those in the U.S. or other countries. This leads to a fair share of problems regarding "fair use" and copyright. As such, just the general legalities concerning the sharing of copyrighted products don't necessarily apply to Dragon Ball, and it's easy to make mistakes.



I've recently made my own Dragon Ball focused channel on YouTube, and have faced my own share of issues regarding copyright strikes and what-not. It's not just my channel either, even big channels like TeamFourStar have faced copyright strikes multiple times and even had their channel taken down (more than once, IIRC).

So I decided to make this thread to take input from other users of this community who've had past experience with YouTube, etc. like GafferTape,
Ajay and others who might have to deal with these issues sometime (if they haven't, I hope they don't, but can at least tell from their general knowledge of the matter) as well as share my own experiences. I hope everyone can contribute and benefit from this

First of all, using music from the Anime (whether it be Kikuchi, Sumitomo or anyone) pretty much guarantees a copyright notice or sometimes even a strike. But using music from the games (Budokai, Xenoverse, etc.) is completely fine. What's up with that?
Also, I know that using clips from the Anime can be troublesome, but what about screenshots and Manga panels?

Team Fourstar has full permission to use audio, and video from both the Japanese, and Western version of Dragon Ball. In-fact, jokes and other bits from Team Fourstar have made it into the Japanese and American versions of the Anime.

This is something that applies to more than just if you're using Dragon Ball Content -- I believe you are not permitted to use entire episodes and certainly have to do cutting, you also can only use very small tidbits of audio from Episodes. Additionally, your videos have to be distinguishable to that of a Dragon Ball Episode.

Screenshots and Manga Panels aren't going to get you in any form of trouble whatsoever.

If Youtubes automatic detection finds that you have any audio from the Anime, or that you have too many tags in your Description relative to the Anime itself, it will automatically send a copyright strike.

Team Fourstar and many of these channels deal with bots instead of actual companies issuing the strikes and it doesn't take much more than disputing your video to get the strike removed and have your video become monetized again.

Edit: To test this out myself, I grabbed a Creative Commons episode 94 Preview for Dragon Ball Super and uploaded it to my channel with the title "Dragon Ball Super Episode 94 Preview", and the INSTANT it was 100% uploaded, I received a copyright strike.

This is not a copyright strike this was a copyright content ID match

[VegettoEX]

There's a difference between "non-profit" and "not for profit." "Not for profit" means that nobody makes any money and all of the money gathered is used in furtherance of the business. Non-profit means that the organization might make a profit, but that isn't the main goal. Basically one of the presumptions whenever someone opens up a business is that there must be a profit. If there is no profit, it's a huge factor in determining if the organization even qualifies as a business or as a hobby. An organization that uses "non-profit" basically informs the public that while they might make a profit, their ultimate goal is not to make a profit. "Non for profit" means that all of the money raised will not go to the owners, but rather invested into the business (charities, etc.).

This isn't entirely accurate.

If there is no profit, it's a huge factor in determining if the organization even qualifies as a business or as a hobby.

This section in particular is especially baseless.

(Source: I worked in the nonprofit sector for a long time.)

The terms are pretty much interchangeable. (There can be very minor distinctions, but for all intents and purposes regarding this discussion here, they're the same thing.) Where you start getting into actual legal definitions and responsibilities is when you apply for and receive something like a 501(c)(#) classification as a tax-exempt organization.

Whether a business actually makes any money or not, and then what they ultimately do with it, isn't the defining factor of them being a "nonprofit" organization.

[TheGreatness25]

But a business is presumed to be looking to make a profit, which is why that distinction is put in when they don't.

business

n. any activity or enterprise entered into for profit. It does not mean it is a company, a corporation, partnership, or have any such formal organization, but it can range from a street peddler to General Motors. It is sometimes significant to determine if an accident, visit, travel, meal or other activity was part of "business" or for pleasure or no particular purpose.

From here: [spoiler]http://legal-dictionary.thefreedictionary.com/business[/spoiler]

I'll concede about the nonprofit and not-for-profit thing about being mostly interchangeable. It still doesn't mean that the business itself doesn't make money, though like many think. It also doesn't mean that they are exempt from copyright laws.

[Cipher]

Frankly, without even getting into international copyright laws, TeamFourStar's Abridged series likely already exists on the razor's edge of a reasonable fair-use defense even within the U.S. court system, if a party were interested in pursuing it (obviously FUNimation considers it free advertising, which isn't an unreasonable stance). At this point it's so robust, and contains enough of the original footage, that it wouldn't be enormously difficult for someone to make the argument it offers a substitution of the original product, and while they may not monetize the videos directly, they do make money from the brand. Though even that isn't so much the issue, so long as a party could reasonably argue that their rejigged version draws potential viewership and customers away from the original product. All those people online talking about how they only watch TFS now, etc.? They're inadvertently making Toei's case.

I'm sure everyone at TFS is well aware of the pitfalls there, and doing their best to navigate it, but this isn't such a cut-and-dried case of "parody-law exists! This is fair use!"

*I am not a lawyer; I'm just tangentially aware of IP and copyright laws from my education.

By far the biggest hurdle a group like TFS faces is the fact that they offer a product that mirrors the narrative of the original series rather completely. We're in uncharted and, honestly, pretty legally interesting territory here. This is the Wild West of copyright law. I agree with TheGreatness 25's analysis last page though that precedent doesn't fall in their favor.

[TheGreatness25]

And also, it's not like Toei is being dicks about it either. They could make things a lot worse for TFS, but all they want is the stuff taken down -- well, I assume that it's Toei. Again, YouTube is a platform that can set its own standards -- much like this forum can, for example. If a moderator wants, he or she can ban someone from here. YouTube is exactly the same way and I don't know why people don't get that. There is no fundamental right to put your work -- even if original -- on a private forum (like YouTube, quite frankly) and not have it be taken down.

To those complaining, they're not seeing it from YouTube's point of view. Actually, it might not even be Toei, it might be YouTube taking down the content out of fear that they would get sued for it (I don't follow the TFS situation closely, so I don't know who requested what to be taken down).

All I know is that as much as it sucks, YouTube owes nobody anything and has full discretion to yank content as it feels. If TFS doesn't like that, then they can make their own website (which I believe they did) and put their stuff up there and roll the dice on not being sued. I'm sure that fans of TFS who love DBZA would frequent their site just as they frequent this one and there's no need to go through YouTube.

By the way, I don't mean for any of my posts to look like I'm speaking negatively about TFS. I think that they work really hard and I appreciate all that they do. Unfortunately, this is the situation and we can't just blame YouTube for being the big, bad jerks for yanking content. We can't blame Toei for being the big, bad jerks who don't want their copyrighted material to basically be given away for free with someone else's name on it.

[VegettoEX]

And also, it's not like Toei is being dicks about it either.

As implied by recent shenanigans, yes, they kinda are.

Actually, it might not even be Toei, it might be YouTube taking down the content out of fear that they would get sued for it

Please re-read what I wrote earlier about safe harbor. Barring their general content guidelines, YouTube does not exercise editorial discretion with regard to what can or cannot be uploaded. This was precisely why the Content ID system arose. Again, I went over this earlier in the thread.

By the way, I don't mean for any of my posts to look like I'm speaking negatively about TFS.

I hope the same comes across for me!

[TheGreatness25]

My bad, I didn't mean that YouTube went around taking down the videos themselves, but rather respond to people making a complaint to them. I was just saying that I didn't know if it was actually Toei who complained or someone else.

[Scsigs]

There is only one thing that really catches my eye as to this whole Fair Use/TFS Debate. They say at the beginning of each video that they're not making profit, right? But how can they get around with having a Patreon page to help them "create content"?
$11,000 a month for "editing" somebody else's content sounds like profit to me.

Well, for one, they took the "non-profit" part out several episodes ago after they started their Patreon last year so they couldn't be called out on lying. They also don't monetize the videos directly. The money they make is donated from fans who like their stuff, also whatever money they make through TFS gaming, so while people are influenced to support them through the abridged series, they're not directly profiting off the series. You can argue, maybe, that they are, but they're technically not. Fan funding is different than video monetization, hence why it was easier for Vidme to implement that before they finally get to ads & why they're gonna keep it after they implement them.

[LuckyCat]

they're not directly profiting off the series. You can argue, maybe, that they are, but they're technically not.

Not disagreeing about fan funding, but I don't think there's any question that TFS makes profit from the Dragon ball brand. TFS even says so on their Patreon page.

I don't think TFS is a typical fan group anymore, though. It seems like the only way their use of Dragon Ball content would be allowed to continue is if they had a profit sharing arrangement with FUNimation, something which is also mentioned on their Patreon page. Then there's collaborative efforts that TFS has with FUNimation which support the idea that TFS is an exceptional case among fan groups.

In summary, TFS may be in total violation of fair use, but the Dragon Ball rights-holders aren't complaining as much as they could.

[Scsigs]

they're not directly profiting off the series. You can argue, maybe, that they are, but they're technically not.

Not disagreeing about fan funding, but I don't think there's any question that TFS makes profit from the Dragon ball brand. TFS even says so on their Patreon page.

Actually, it says the opposite. DBZA & HUA don't make any profit is what it says. I don't know where you're getting that.

I don't think TFS is a typical fan group anymore, though. It seems like the only way their use of Dragon Ball content would be allowed to continue is if they had a profit sharing arrangement with FUNimation, something which is also mentioned on their Patreon page. Then there's collaborative efforts that TFS has with FUNimation which support the idea that TFS is an exceptional case among fan groups.

In summary, TFS may be in total violation of fair use, but the Dragon Ball rights-holders aren't complaining as much as they could.

Here's the thing. They're allowed to continue because FUNi allows them to, yeah, but even if FUNi DID have a problem with them, it's not like, legally, they're in the wrong. We can argue all day about how MUCH in the right they are, especially compared to someone like the Nostalgia Critic, but the fact remains that they only use the footage & some music, but the videos themselves are nonprofit, plus are reedited from the original episodes, rewritten, & have different voice acting than the original episodes. Patreon is, literally, there only to help them pay their bills, as they DID say on their page there. They also make a profit monetizing their gameplay videos on their gaming channel, which they ARE, legally, in the right to do. I know THAT because I d the same thing on my channels.
Plus, Little Kuriboh has been doing Yugioh Abridged 2 years longer than they've been doing DBZA & he's managed to keep his videos up for almost 10 years on his current channel on YouTube. He has a Patreon too & you can say people only support him there because of Yugioh Abridged. It's true, but he's not monetizing the episodes & movies themselves, he's making the money through 3rd party help, similar to TFS & everyone else who has a Patreon.
If FUNi, or Toei, took TFS to court, it'd be a LONG ass battle, but ultimately, I think, TFS would come out on top due to Fair Use laws.
By the way, & I think I mentioned this in the TFS forum, but Toei only keeps taking them down because, in Japan, Fair Use isn't a thing. At all. Japanese copyright law is so strict, it doesn't allow for Fair Use. At all. Everything's licensed out in Japan. However, since YouTube is an American company operating under American copyright laws, legally, TFS is in the right over Toei. The only company that can really take them to court is FUNimation, but FUNi have only exercised that right on Attack on Titan Abridged, since TFS made that at a time where FUNi had only streamed it online & hadn't dubbed the episodes yet, or released the home video copies, or aired in on US TV. I bet if they started AOTA up again, they'd be fine.
But that's just my understanding of this stuff.

[Nejishiki]

LuckyCat is referring to their statement here: "Our T-shirts over on SharkRobot are for-profit, and we've worked with several people to make sure that all our designs fall under copyright parody laws."

[VegettoEX]

Scsigs, your understanding of most of these issues is incredibly flawed. Your understanding of fair use remains incomplete, your assessment of a potential legal battle involving TeamFourStar is in no way realistic, your understanding of Japanese copyright law is incorrect, your understanding of international copyright law appears to be nonexistent, your understanding of the circumstances surrounding specific property takedowns is incomplete...

I don't mean to be harsh and appear to be personally attacking you, but it's these kinds of responses that perpetuate the gross misunderstanding of how this stuff works, which is very frustrating.

[Scsigs]

LuckyCat is referring to their statement here: "Our T-shirts over on SharkRobot are for-profit, and we've worked with several people to make sure that all our designs fall under copyright parody laws."

I see. That makes sense then.

Scsigs, your understanding of most of these issues is incredibly flawed. Your understanding of fair use remains incomplete, your assessment of a potential legal battle involving TeamFourStar is in no way realistic, your understanding of Japanese copyright law is incorrect, your understanding of international copyright law appears to be nonexistent, your understanding of the circumstances surrounding specific property takedowns is incomplete...

I don't mean to be harsh and appear to be personally attacking you, but it's these kinds of responses that perpetuate the gross misunderstanding of how this stuff works, which is very frustrating.

I did add the disclaimer that that's how I understood things, but I will admit I don't know everything. I only understand copyright law through things I've read, or videos I've seen explaining them, so if my information's incorrect, I apologize.

[TheGreatness25]

I did add the disclaimer that that's how I understood things, but I will admit I don't know everything. I only understand copyright law through things I've read, or videos I've seen explaining them, so if my information's incorrect, I apologize.

We discussed a lot about copyright law, Fair Use, and YouTube's policy a bit earlier to give you an idea of what it's all about. Hypothetically let's say you made a movie. You shot it, you worked hard on it, that's your pride and joy. Then one day you go on YouTube and someone from another country put up the movie to be seen for free. That person dubbed over the movie, but still tells pretty much the same story. Oh, and before the movie starts, they said, "Hey, this isn't my movie! And I'm not making money off of this! Though I am making money from the traffic you're giving me!" You don't get a nickel out of it. Fair? No, not fair. That's exactly what copyright law looks to protect. It seeks to protect you -- the person who worked hard -- from losing out because someone decided to take it and distribute it for free with some tweaks.

A video itself is copyrighted material, an audio track is copyrighted material, it matters not if money is directly generated from it. Fair Use is not a ticket to do whatever you want just because you say it's "Fair Use," Fair Use is a legal defense that the infringer has to raise when the copyright holder takes him or her to court. It doesn't mean that the copyright holder cannot demand that they stop using that material -- it doesn't make the holder defenseless and have to sit there and watch their work get pranced around. It's so that the infringer doesn't pay up. There are factors to Fair Use, as I described earlier. On each of those factors, though, Team Four Star would likely lose. So I would argue that it's not even justified by Fair Use, but even if it's not, Toei can still demand that they stop doing what they're doing. And on top of that, nobody has the right to post whatever they want on YouTube -- YouTube of course may take down whatever they want or whatever is drawn to their attention as copyright infringing.

So yeah, that's it in a nutshell. Fair Use isn't "Hey, I'm not making money off of it and all I'm using is 75% of the video and the music so you can't touch me, tra-la-la!"

[omaro34]

Without going into the fair use side of things because I don't have much to add from what's already been said, TFS has brought so much awareness to Dragonball as a whole. Some even consider it free advertising. I know a plethora of folks that started watching Dragonball through Abridged first and then went to the original after. Toei not being lenient with copyright claims on YouTube and as a result TFS videos being taken down sounds unfair to me since they indirectly bring Toei more Dragonball fans hence more profit, but they do have every right to do it since TFS uses the same material and turns it into a parody.

[Cipher]

TFS uses the same material and turns it into a parody.

I don't want to be a huge negative Nancy, but the following does bother me a bit. It's also the point on which a potential fair-use defense, if anyone were ever interested in pursuing it in U.S. court, would be likely to face its largest hurdle:

TFS' Abridged is not a parody. It's just a comedy using large swathes of borrowed material.

It takes the footage, music, and overall narrative of the existing series and presents a more fully comedic version of it, but it offers no commentary or criticism on the original. The Supreme Court, in establishing grounds for a fair-use defense, was actually pretty thorough about their reason for carving out defense for parody (they may exist to offer "comment or criticism" by "shedding light on an earlier work"):

Relevant bit of description:

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.

Source: https://apps.americanbar.org/litigation ... utline.pdf

They'd have to rely on the following, arguing that the work is either disseminated in a way that does not risk substitution for the original product, or that it's simply transformative enough with the material.

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives . . . , it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the original work, the new work’s minimal distribution in the market, the small extent to which it borrows from the original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use.

Conceptually, I'd think TFS' most similar artistic counterpoint from a legal standpoint would be unlicensed song remixes.

I also think it's unlikely that such a direct legal battle would ever happen over the series, mostly because it isn't a clear-cut win for either side, and again, FUNimation seems to enjoy it as a form of advertisement, even if Toei doesn't. They also might be able to win out on a parody case just by arguing that the series is perceived as parody since courts rightfully prevent too much literary analysis, outside of arguing public perception, from entering this type of case. In a parallel world in which no one's livelihoods would be destroyed by such a case, though, I'd be really, really interested to see what kind of precedents it could set regarding long-form narrative, transformative video works like this. Again, that's a totally new thing.

[omaro34]

TFS uses the same material and turns it into a parody.

I don't want to be a huge negative Nancy, but the following does bother me a bit. It's also the point on which a potential fair-use defense, if anyone were ever interested in pursuing it in U.S. court, would be likely to face its largest hurdle:

TFS' Abridged is not a parody. It's just a comedy using large swathes of borrowed material.

It takes the footage, music, and overall narrative of the existing series and presents a more fully comedic version of it, but it offers no commentary or criticism on the original. The Supreme Court, in establishing grounds for a fair-use defense, was actually pretty thorough about their reason for carving out defense for parody (they may exist to offer "comment or criticism" by "shedding light on an earlier work"):

Relevant bit of description:

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.

Source: https://apps.americanbar.org/litigation ... utline.pdf

They'd have to rely on the following, arguing that the work is either disseminated in a way that does not risk substitution for the original product, or that it's simply transformative enough with the material.

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives . . . , it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the original work, the new work’s minimal distribution in the market, the small extent to which it borrows from the original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use.

Conceptually, I'd think TFS' most similar artistic counterpoint from a legal standpoint would be unlicensed song remixes.

I also think it's unlikely that such a direct legal battle would ever happen over the series, mostly because it isn't a clear-cut win for either side, and again, FUNimation seems to enjoy it as a form of advertisement, even if Toei doesn't. They also might be able to win out on a parody case just by arguing that the series is perceived as parody since courts rightfully prevent too much literary analysis, outside of arguing public perception, from entering this type of case. In a parallel world in which no one's livelihoods would be destroyed by such a case, though, I'd be really, really interested to see what kind of precedents it could set regarding long-form narrative, transformative video works like this. Again, that's a totally new thing.

You're not being negative at all. Don't think that for one second. I'm open minded and love to learn. Thank you for enlightening me. I took a little read into the link you left, and I learned a lot. I'm no expert in the legalities of fair use, but you broke things down in a simplistic way. I stand corrected, labeling TFS as simply a parody diminishes what is original in the work they bring which includes the dialogue, VA's, music, etc.

It's quite negative of the fans that put hard work into their craft, and I'm happy some moved on with legitimate voice acting roles. I understand why it would bother you to simply label it as such when its not, but it also adds a dismissive tone to what they bring to the table.

[Kamiccolo9]

I think another issue to consider in this hypothetical legal battle is money. Do the TFS crew have the assets to go up against Funimation or Toei for any real amount of time? Regardless of whether they'd win or not, legal stuff is expensive, and it would be much easier to just comply with a C&D.

[dbgtFO]

TFS have grown so big that taking them down now would be counter productive. That is how it works; you either get stopped at the very beginnong before establishing a big enough presence or you get so big that you might as well be viewed as another part of the machine that brings in more fans, who would then be more interested in buying DB merchandise and media.
The money TFS makes, may just be miniscule compared to whatever amount their work is indirectly helping the official brand make and as such the rightsholders might just be grateful and view the money TFS makes as their well deserved wage, they won't touch, as a thank you for helping the brand.

I imagine this could be the case, but it could also be very optimistic bullshit and since their voices got removed from the official kai dub, it might imply the rightsholders are not that lenient.