News Every Day | 02 April 2024, 23:57

YouTuber Andrew Callaghan speaks out against copyright strike from FOX5

On Saturday night, March 30, around 10:30pm, independent journalist Andrew Callaghan noticed something odd.

Known for his vox-pop, gonzo-style documentaries, the 26-year-old had recently re-vamped his YouTube channel, Channel 5, in October after a nine-month hiatus, following a series of sexual misconduct allegations in early 2023.

In recent months, he’s been working on a new documentary. The film is an hour and 37-minute journey into the Las Vegas Tunnels — where hundreds of unhoused people live underground. On March 28, Callaghan released the full film on YouTube. It rapidly gained more than a million views over the weekend.

But suddenly, Callaghan noticed the video was gone. YouTube had issued him a copyright strike without any warning.

“There was no option, no prior warnings. Just like literally, one second there, the next second gone,” Callaghan told Passionfruit.

The strike was from a local news station, FOX5 Vegas. It was related to a 1-minute section (of Callaghan’s over 97-minute documentary) that featured clips of FOX5 news segments about the Shine A Light foundation, which serves the homeless population in Vegas. Under the fair use doctrine codified in the Copyright Act of 1976, however, documentary filmmakers don’t have to secure licenses to use clips of copyrighted material.

FOX5 did not respond to our request for comment. But Callaghan says the company sent him a message arguing that it does not consider his use of their clips as “fair use.”

Fair use law is notoriously vague, often in journalists’ favor. Courts apply a four-part analysis in the Copyright Act to determine whether use is “fair.” The key questions consider whether a work is truly “transformative,” whether the amount of copyrighted material used was appropriate, whether the user had “good intent,” and whether there is significant economic harm to the copyright holder.

Courts, however, usually deem documentaries fair use (even if creators monetize them) due to their highly edited and educational nature. And, regardless of the legal standing, FOX5 taking down a fellow journalist trying to educate viewers about a good cause seems a bit bizarre.

“Obviously, we know it’s fair use. So, it’s pretty weird,” Callaghan said. “YouTube is supposed to be a public forum. I understand that they are a corporation. But I was hoping that they would have a little bit better process to deal with this.”

For Callaghan, the consequences of the takedown were particularly brutal. He spent months on the documentary, which aimed to help the community in the tunnels and the Shine A Light nonprofit. He also says he spent over $20,000 for the film’s voiceovers in Spanish, German, Brazilian Portuguese, French and German.

The sudden removal was also strange because Callaghan is a YouTube Partner. Creators receive advanced benefits from the program, including human support lines.

But in this case, YouTube presented him with fairly limited appeal options. Callaghan said he tried to contact his designated YouTube partner liaison. But the liaison told him he had to settle the dispute directly with the content owner, FOX5. According to YouTube’s process, FOX5 had 10 business days to respond.

However, the damage is already done.

“I mean, 10 business days, obviously, if you know how the algorithm works, is enough to kill that momentum and traction of a video,” Callaghan told Passionfruit.

Callaghan said he wants to pursue legal action against FOX5 and its parent company, Gray Television.

“I happen to be in a good spot, financially and career-wise, where I can handle it,” Callaghan told us. “But I can’t imagine how many other smaller creators, journalists, people who want to make documentaries who have, I guess, barked up the wrong tree or ruffled the incorrect feathers, have not been able to do shit about it.”

Andrew Callaghan is just one example of a creator dealing with unruly copyright strikes. Companies like Nintendo and Disney are notorious for targeting creators’ videos, even when their work arguably falls under fair use. YouTubers have even reported that their competitors unfairly struck them.

Unfortunately, YouTube enforces these takedown requests automatically through its Content ID system. The burden of proving fair use then falls on the creator. The creator has to dispute it with the copyright owner or take them to court, which can be costly.

Callaghan made a video about his predicament on March 31. The video has already accumulated over a million views.

“I’d like to think that as journalists, we’d be allied in some sense,” Callaghan says in the video. “I’m making the video specifically to explain to FOX and to anyone else who wants to come after independent journalists, that what they’re doing is illegal.”

The full version of Callaghan's film is currently available on his Patreon. The creator is hoping with public attention, companies will no longer be able to infringe upon the fair use rights of journalists and documentary filmmakers.

“I want to hopefully set the precedent for future situations like this,” Callaghan said. “What I’m hoping for is that they’ll get to a point where they feel like the pressure is so high that they have to do something different.”

– Grace Stanley, Deputy Editor

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