Summary:
In the fall of 2019, talk show host Ellen Degeneres was criticized after being seen attending a professional football game with former President George W. Bush. Degeneres addressed the controversy on her show, saying she was invited by the Dallas Cowboys’ owner, and also suggesting that she was friends with the former President Bush and that people should “be kind” to people they disagree with politically.
Rafael Shimunov took the video of Degeneres giving her side of the controversy and transformed it so that the background showed disturbing images from the Iraq War which was started by President Bush. The clip used approximately half of the video that Ellen herself had posted to YouTube, with the only change being the replacement of the blue background. Soon after that video began to go viral on Twitter, Shimunov and others who had reposted it received notices saying that the video was taken down due to a copyright claim under the DMCA made by someone working for Degeneres’ TV show.
Recipients of the takedown notice said that it appeared to be the work of a social media manager for the show and not an automated takedown.
As the EFF noted in discussing the takedown, the DMCA requires that anyone filing a DMCA takedown notice take into account whether or not the content in question is covered by fair use, and there is little evidence the social media manager filing these notices did so.
Decisions to be made by Twitter:
- Is changing the background in the video transformative enough to make it fair use?
- Should you consider that the images act as commentary on the content of the video?
- How should Twitter deal with copyright holders who ignore fair use in issuing DMCA takedowns of videos?
- Should Twitter re-enable such videos following public controversy?
Questions and policy implications to consider:
- Should social media companies be responsible for judging if content subject to a takedown is covered by fair use?
- Are the current rules regarding fair use and filing false takedown notices clear enough to stop such filings?
- How should the law handle takedowns over content that is fair use?
Resolution:
The story of the takedown got widespread press attention and Rafael Shimunov even put up an online petition asking Twitter to put the video back up. However, over a year later, at the time of writing this story, that video remains removed on Rafael’s own Twitter feed, though it has been put back on others.
Written by The Copia Institute, November 2020
