Fox Station Copyright Strikes YouTuber’s Documentary Over Use Of 1 Minute Clip

I’m going to kick this post off by stipulating to a couple of facts. First, the primary subject of this post is YouTuber Andrew Callaghan. Callaghan has both something of a checkered past as a YouTuber, having had his most recent channel briefly taken down over claims of spreading COVID-19 misinformation, but in which he’s also produced some interesting content. Callaghan has also had allegations made against him in the past by several women as to inappropriate sexual advances and pressuring, with the YouTuber disputing many of those allegations alongside an apology for some of his behavior. He is, as they say, a complicated character.

My second stipulation is that I have not watched the documentary he produced that is also the subject of this post, which was a deep dive into residents of the Las Vegas Tunnels. That being said, the documentary originally received a fairly sizable viewership.

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 details here are going to be important, so we’ll need to see how some of this shakes out. But from the article, Callaghan used a 1 minute clip of FOX5 content that involved clips relevant to the overall documentary, which is much longer in length. The documentary is obviously a piece of journalistic content, though it is unclear at this point if Callaghan added any direct commentary pertaining to these clips as well as what percentage of the used clips is related to the overall FOX5 content. Those would be questions within the four factor test should this go to trial.

But from the outside looking in, this all certainly smells like 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.

Bizarre indeed, considering these are clips of past broadcasts, so it’s difficult to understand what harm FOX5 would have suffered as a result of the use of those clips in the first place. If there is no real harm to FOX5, the channel could have simply left all of this alone without further consequence. Instead, it issued the copyright strike, which resulted in the takedown of the entire documentary at a critical time for the film.

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.

The film is still unwatchable on YouTube as of the time of this writing. It is available on Callaghan’s Patreon page, however, so it’s not like FOX5 even fully disappeared the film.

Whether this is truly an instance of fair use content being taken down is a question that will have to wait for the appeal process to be worked through. Again, from the outside that’s the way it looks. But at a bare minimum, we can say that FOX5 appears to be behaving in an overly protective fashion to take down a fellow journalistic piece of content.