Lol.... I've been a long-time watcher of uberdanger, but I stopped watching him a couple months ago. I just watched Scarce's new video (3 hours ago) where uberdanger got copyright striked by KAYLA-NA. I'm rolling right now dude.

Uberdanger allegedly used one of her artworks in one of his videos because he usually has montages of a lot of censored hentai/34 material of the champion he's playing in many of his videos, and I'm guessing kayla's work was somewhere in there. His video actually got taken down because of it, and if you've known youtube, you know that takedowns can be devastating for a channel. Like, to put into the perspective of anyone who's new to it, it only takes 3 takedown strikes to ELIMINATE a channel. The first strike has already taken away privileges of YT livestreaming, unlisted and private videos, and other powers.

Before you get your pitchforks and torches, Kayla did contact him before she put a strike on his video.
BUT - She didn't contact him through his business e-mail
AND - Uberdanger was on vacation throughout the time Kayla tried to talk to him about it.

What do you guys think about this whole thing?
I just thought it would fit since while watching the video, I saw that it was striked by none other than "Kayla-Na" themselves.

Link to Scarce's video
Uberdanger's Channel

I think it's ironic given that she's had DMCA's filed against her as well.

Looks like his channel is monetised, which means it shouldn't come as a surprise for him that someone takes issue with him earning money of someone else's creation.

I haven't seen the video in question, but it sounds to me like fair use despite being monetized.

Maxpizzle said:
I haven't seen the video in question, but it sounds to me like fair use despite being monetized.

Then it's not fair use.

Ratte said:
Then it's not fair use.

It is possible for something to be both fair use and monetized, just as it's possible for something to be free, but still not fall under fair use.

You cannot use copyrighted material without the permission/consent from the owner(s) of said material if you have a monetized channel or became a Youtube partner. If you do use copyrighted materials, the owners can block you from earning money from the vid, file a complaint and remove the video, or can delete an entire channel if it happens more than once. Learned that the hard way years ago.

The DMCA and copyright laws need a serious revision.

Clawdragons said:
It is possible for something to be both fair use and monetized, just as it's possible for something to be free, but still not fall under fair use.

See:

TheHuskyK9 said:
You cannot use copyrighted material without the permission/consent from the owner(s) of said material if you have a monetized channel or became a Youtube partner. Learned that the hard way years ago.

Don't use someone's work without permission if you are making money from your channel. Fair Use is for not-for-profit. Monetization is literally the exact opposite.

fox_whisper85 said:
The DMCA and copyright laws need a serious revision.

No they really don't.

I think I should clarify something:
These montages of images aren't up on the screen for like, the whole video. In his videos, these NSFW images usually flash through for literally a fraction of a second, they do not contain the whole video length.

Since the video in question was taken down, and no one can really see how kayla's image was put into use in that video, though the above reason would be presumably assumed that's how it was used. It wasn't put into use like a REACTION™ video where the content was based around the image alone. He still did put a shitload of editing into his video only to get it striked down by what could've been a millisecond of an image.

BismuthGalaxy said:
I feel as though the main question is whether or not the image in question was behind a paywall. If it was, then I see the strike as fair.

On the other hand though, if the piece in question was just a tiny portion of the video as a whole, then it falls deep into a legal grey area, considering that other parts in the video are presumably the youtuber's.

One also has to take into account how central the image was to the video. If neither the intent nor the effect of the copyrighted work's use was to lose Kayla money, then I see no reason why it should be banned. I've seen this argument time and time again, yet I stand by my principle: If something is made freely available, then there is little grounds for trying to control said something's dissemination.

If I own an image I made (which is inherent) I have every right to control where it goes.

Woah woah here all the misinformation about fair use is really scary.
You do not need permission and it doesn't have to be free for Fair Use to be in effect. I agree that making money off someone else's work is not cool (Which is hilarious now that I think about it because Smudgeproof really likes to abuse the Fair Use policy under parody content with a text disclaimer ) but that doesn't mean it is not Fair Use. If the video is transformative, then it is Fair Use. He probably commented on it, gave some critics, that falls under Fair Use too. If he would only have done a random slideshow of those pictures, then no, this wouldn't have been Fair Use at all.

Just to quote the very first sentence on Wikipedia about Fair Use :

Fair use is a US legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders.

I already didn't really like this Kayla's overall behavior, and this little incident surely isn't really going to help at all

Neitsuke said:
Woah woah here all the misinformation about fair use is really scary.
You do not need permission and it doesn't have to be free for Fair Use to be in effect. I agree that making money off someone else's work is not cool (Which is hilarious now that I think about it because Smudgeproof really likes to abuse the Fair Use policy under parody content with a text disclaimer ) but that doesn't mean it is not Fair Use. If the video is transformative, then it is Fair Use. He probably commented on it, gave some critics, that falls under Fair Use too. If he only did a random slideshow of those pictures, then no, this isn't Fair Use at all.

Just to quote the very first sentence on Wikipedia about Fair Use :
I already didn't really like this Kayla's overall behavior, and this event surely doesn't help it at all

>the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;[/b]
>the nature of the copyrighted work;
>the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
>the effect of the use upon the potential market for or value of the copyrighted work.

Go sue all those news reports channels on television and Internet then. They all have advertisements that gives them some money on each of their article.

He is not selling the video, he is not merchandising it, that's why YouTube AdSense and similar don't fit the criteria here

ALSO, this factor isn't saying that it cannot be used for monetization, it is here as a weight judgment : Something monetized can be seen more "evil" as something not being monetized. It doesn't mean that money gain cannot be done.

You simply quoted a possibility of what the purpose can be. If he's doing that for free, then he's probably in the clear. However, if he started to mass selling his video and promote it using the artwork as thumbnails everywhere on top of a VIP subscriptions to see the video, then the purpose will clearly go to the Pure money making, which they can claim that he is going too far. However, ads money on the side, as I said happens for news channels, doesn't give enough "strength" for the copyright owner to claim it is not Fair Use

Monetization is still getting money for what you produce. Adspace is paid for by the ad company. These are two incredibly different things.

Neitsuke said:
You do not need permission and it doesn't have to be free for Fair Use to be in effect.

These are good reads
https://www.youtube.com/yt/copyright/fair-use.html#yt-copyright-myths
https://www.youtube.com/yt/copyright/fair-use.html#yt-copyright-four-factors
https://support.google.com/youtube/answer/2797466
https://support.google.com/youtube/answer/2814000

Basically, Kayla-Na just filed a takedown request on Youtube and she has the legal right to do that if a video has her content in it.

BismuthGalaxy said:
Funny how all the admins jump into this thread to quash any dissent...

Doesn't matter if I was an admin or not. I would still say the same thing. Status on this site is irrelevant to this conversation.

For the purposes of this discussion, I'll assume US copyright law.

TheHuskyK9 said:
You cannot use copyrighted material without the permission/consent from the owner(s) of said material if you have a monetized channel or became a Youtube partner.

Monetization can affect the legality of using copyrighted work without permission, but it isn't the sole criterion.

TheHuskyK9 said:
If you do use copyrighted materials, the owners can block you from earning money from the vid, file a complaint and remove the video, or can delete an entire channel if it happens more than once. Learned that the hard way years ago.

True. However, that's often a matter of YouTube policy and its enforcement, rather than a direct application of copyright law. Wisely, perhaps, YouTube seems to err on the side of favoring the claimant in copyright disputes.

Ratte said:
Don't use someone's work without permission if you are making money from your channel.

That's a good rule of thumb but it's more than the law requires.

Ratte said:
Fair Use is for not-for-profit.

Often, but not always.

Ratte said:
If I own an image I made (which is inherent) I have every right to control where it goes.

You have a great deal of control, but it is not without limits.

You didn't even read the myths, which is kind of sad

#1 : Example : I post Justin Bieber's music and I credited him [NOT FAIR USE, crediting =/= Fair Use]

#2 : Nothing much to say : Because you say you didn't make it doesn't make it Fair Use

#3 : Example : I upload the whole Balto movie without Ad Sense [NOT FAIR USE, as I said, uploading a full movie isn't transformative, it isn't "Fair" Use simply because it is not monetized]

#4 : Basically about the transformative issue of Fair Use. tldr: If you put sunglasses on one of Kayla-Na's picture and that's it, that isn't transformative enough to be Fair Use

Again, I repeat, the guy probably provided a discussion/criticism of the subject and pictures that he used to explain his case : That, is Fair Use, he doesn't need permission to use the pictures

BismuthGalaxy said:
Can we peacefully agree to disagree? I would never assume that I have such control over my own work (shitty as it is), and willingly put it out into the public. This is just fundamentally an opinion-based argument, meaning that nothing can be done to change either of our opinions. Therefore, this whole thread is a farce.

So do I, and yet I have still had to file DMCA's over my work being uncredited and put in videos and having my signatures scrubbed and work still posted on Instagram.

BismuthGalaxy said:
>...having a commercial purpose does not preclude a use from being found fair[/b], even though it makes it less likely.

https://support.google.com/youtube/answer/2490020?hl=en

Although you may have found the content online for free, in most cases its actual creator holds many of the rights needed to commercially exploit the content.

If you want to monetize such content, make sure that you have all the necessary commercial use rights for it.

If you don't have those, it should be of no surprise that a video was taken down.

I used third-party content under Fair Use

Commercial uses are less likely to be considered "fair use," though it’s possible to monetize a video and still take advantage of the fair use defense in some cases.

Ratte said:
https://support.google.com/youtube/answer/2490020?hl=en

If you don't have those, it should be of no surprise that a video was taken down.

Also from that page (emphasis mine):

Commercial uses are less likely to be considered "fair use," though it’s possible to monetize a video and still take advantage of the fair use defense in some cases. For more information, go to the What is Fair Use? site.

;P

EDIT: Neitsuke beat me to the punch. Man, this thread moves quickly.

Neitsuke said:

And lo and behold, it wasn't.

Hmm.

Neitsuke said:
You didn't even read the myths, which is kind of sad

#1 : Example : I post Justin Bieber's music and I credited him [NOT FAIR USE, crediting =/= Fair Use]

#2 : Nothing much to say : Because you say you didn't make it doesn't make it Fair Use

#3 : Example : I upload the whole Balto movie without Ad Sense [NOT FAIR USE, as I said, uploading a full movie isn't transformative, it isn't "Fair" Use simply because it is not monetized]

#4 : Basically about the transformative issue of Fair Use. tldr: If you put sunglasses on one of Kayla-Na's picture and that's it, that isn't transformative enough to be Fair Use

Again, I repeat, the guy probably provided a discussion/criticism of the subject and pictures that he used to explain his case : That, is Fair Use, he doesn't need permission to use the pictures

I did, I wouldn't post it if I didn't. The fact of the matter is that his video contained Kayla-Na's content without her permission and his video was monetized. If his video wasn't monetized, then that can qualify as Fair Use but since he was earning revenue with each viewer on the video, it no longer qualifies as Fair Use since he is profiting from her content. Doesn't matter if it was on the vid for less than a second, it's there.

Again, I repeat, Kayla-Na filed a takedown request on Youtube and she has the legal right to do that if a video has her content in it

BismuthGalaxy said:
I think the difference here is that that is Youtube's policy, which differs from copyright policy. I understand that under Youtube policy, the takedown is somewhat expected, and I think part of the argument here is over the fairness (or lack thereof) of Youtube's policies.

I thought I would look at Youtube's specific rules again since I've had to pull people's videos before at least five times now.

For the record, since I know people are going to get incredibly stupid: I don't mind the sharing of my work. Just keep my signature on it and credit me if you know where/who it's from. Thanks.

BismuthGalaxy said:
I think the difference here is that that is Youtube's policy, which differs from copyright policy. I understand that under Youtube policy, the takedown is somewhat expected, and I think part of the argument here is over the fairness (or lack thereof) of Youtube's policies.

Exactly.

Ratte said:
And lo and behold, it wasn't.

Hmm.

I assume you mean that it wasn't considered fair use. But YouTube's takedown does not constitute a court ruling. If Uberdanger submits a counter-claim, the takedown might be found erroneous.

Maxpizzle said:
I assume you mean that it wasn't considered fair use. But YouTube's takedown does not constitute a court ruling. If Uberdanger submits a counter-claim, the takedown might be found erroneous.

Then by all means try it. If it doesn't work, I will not be surprised.

Ratte said:
Then by all means try it. If it doesn't work, I will not be surprised.

Your point? EDIT: Never mind.

EDIT 2:

TheHuskyK9 said:
If his video wasn't monetized, then that can qualify as Fair Use but since he was earning revenue with each viewer on the video, it no longer qualifies as Fair Use since he is profiting from her content. Doesn't matter if it was on the vid for less than a second, it's there.

Again, this is simply not true. Purpose and character of use (i.e. whether he earned money) is only one of the four factors that go into a fair use ruling. Also, it does matter if it was on the vid for less than a second (the "amount and sustainability" fair use factor).

The video got pulled out because people are guilty until proven innocent and it's all managed by robots. Because the video got it down doesn't mean it wasn't Fair Use : Just that YouTube is a pussy about it, referred as the #wtfu movement on Youtube

Neitsuke said:
The video got pulled out because people are guilty until proven innocent and it's all managed by robots. Because the video got it down doesn't mean it wasn't Fair Use : Just that YouTube is a pussy about it, referred as the #wtfu movement on Youtube

Funny because one of the first times I had to file a DMCA it took over half a year, but ok.

BismuthGalaxy said:
Actually, crediting should be a requirement. I understand this.

Honestly, I like when people share my work. If nothing else it's funny to see where it goes. But if you remember that Instagram thing from a couple months ago, 11 of my paintings were in that galley. None were credited and over half of them were scrubbed of their signatures. I do not use huge ugly watermarks, just small corner signatures. I don't know why anyone would go to that length just to post something of mine but it was incredibly shitty and they got what they deserve from me and many others.

I have had to deal with art theft. I am very much part of the "other side" of this issue, and dealing with DMCAs is a massive headache.

However, as I've said before: it's ironic that Kayla-Na is doing this since she's been on the opposite side of the matter many times, such as her, uh, "crystal pony" waifu pillows.

BismuthGalaxy said:
It's not exactly that Youtube are weak. It's that Warner Bros, Disney, etc. are extremely powerful titans in the corporate world. Even though Google is a fellow titan, it's outnumbered...

Even then, would it ever be worth it for Google/YouTube to pay teams of lawyers to look into every single takedown request? Probably not. Copyright dispute resolution is a hard problem, but they found a partial workaround that gets people off their backs in most cases. I don't see them changing it any time soon.

EDIT:

Ratte said:
However, as I've said before: it's ironic that Kayla-Na is doing this since she's been on the opposite side of the matter many times, such as her, uh, "crystal pony" waifu pillows.

Yeah, that's the part I don't really get. What is Kayla-Na really hoping to gain from taking down a (presumably) split-second appearance of her art that - let's be honest here - nobody really cares about? What's the point?

There is a lot of misinformation here.

Whether a work is commercial or not is an influence, but not a deciding factor. Because I want to trump any link wars, I'm going to cite actual legal rulings here.

http://copyright.gov/fair-use/summaries/elsmeremusic-nbc-sdny1980.pdf

Specifically states that the work was commercial, and yet still fair use.

http://copyright.gov/fair-use/summaries/hustler-moralmajority-9thcir1986.pdf

This reproduction was at least in part "motivated by the commercial goal of raising funds for litigation", but was still fair use.

http://copyright.gov/fair-use/summaries/fisher-dees-9thcir1986.pdf

This work was commercial, and notably the holder of the copyright refused to allow the defendant to use that copyright when asked - but it was still fair use because it qualified as a parody.

A notable quotation from this one:

"While the use was commercial in nature, thus creating a presumption against fair use, the court noted that the presumption could be rebutted if the parody did not unfairly diminish the economic value of the original."

As you can see, the court itself stated that it may take whether or not something is commercial into account, but that is not absolute.

http://copyright.gov/fair-use/summaries/maxtonegraham-burtchaell-2dcir1986.pdf

Commercial elements, but also strong educational elements, which are strongly protected by fair use.

I don't think I need to go on, do I? These are actual court decisions finding that commercial works to be fair use.

Here are a lot of other cases regarding fair use

If you don't feel like wading through legal documents, here's another option. A video on the Internet!

Scribble Kibble - Fair Use

This explains the basics of fair use pretty well, and addresses a number of misconceptions. Of course, the legal documents are a much stronger case for my position, but this is a good summary overall.

Alternate thread title :
"Kayla-Na is oblivious to the concept of 'irony.' "

more at ten.

BismuthGalaxy said:
I can see where you're coming from on the art theft front. I can also see how it would be a problem if someone takes your art, claims it as their own, and tries to sell it. I can definitively say that that should stay prohibited. Perhaps there was a miscommunication on my part on how far my "FREEDOM!!1" mantra went. I'm not that crazy.

I do think that people should have to expect things to spread if they're going to post it online. My work was posted here long before I joined this site, for example. However, those who made the work should still have some say where it goes since they still made it. There are exceptions to this, such as work for hire (because rights then belong to the owner/company, note that this is not the same as commissioned work).

If anything I have questions as to why my stuff seems to end up on VK and the Russian Joyreactor site. I even have an artist tag on Joyreactor.

Ratte said:
...work for hire (because rights then belong to the owner/company, note that this is not the same as commissioned work).

Wait, why isn't it the same?

BismuthGalaxy said:
*Clap*

This made me smile. I'm glad that I was helpful.

Maxpizzle said:
Wait, why isn't it the same?

Work for hire is part of an actual employment job (consider something like book illustrations). Commission work is not. Rights to commissioned work can be bought or sold, but otherwise the rights to the image still belongs to the artist.

Man, where's a lawful neutral NPC when you need one? But seriously, I love how interpretive the law is. Makes for an interesting thread like this one so I can prepare to release that guide I'm working on. Btw in all honesty I figure Kayla could have been wrong on this one, but meh, I'm just some dude on the internet.

Tl;dr law of gravity best law bweh

I haven't head this artist's name in forever, and then shit hits the fan because Youtube is mentally challenged. Go figure.

Ratte said:
Work for hire is part of an actual employment job (consider something like book illustrations). Commission work is not. Rights to commissioned work can be bought or sold, but otherwise the rights to the image still belongs to the artist.

You're generalizing different "Rights" into a single category, which isn't correct.

Oracle_of_Pelor said:
Man, where's a lawful neutral NPC when you need one? But seriously, I love how interpretive the law is. Makes for an interesting thread like this one so I can prepare to release that guide I'm working on. Btw in all honesty I figure Kayla could have been wrong on this one, but meh, I'm just some dude on the internet.

Tl;dr law of gravity best law bweh

We can't say whether they are in the right or wrong. Not unless the video maker disputes then it actually gets handled professionally. Until then, this is just one person making a move that a machine will automatically say yes to.

Maxpizzle said:
Wait, why isn't it the same?

The difference is probably in who gets the copyright to the art. In commissioned art, the artist keeps the copyright. In work for hire, the copyright goes straight to the guy who bought it (which requires a contract or other agreement). I'm probably wrong, though.

Yooo I looked more into it and it seems that this dude have used the picture for the thumbnail, one of those annoying idiots that use sexual thumbnails to sponge the views. If that's actually the case, then I'm afraid there is borderline no case of Fair Use here : Using a picture as a video wrap isn't transformative (More like clickbaitative lul) so it's all fine by me that video got removed even if a bit excessive, just a warning to change the thumbnail would have been fine, but still, her hypocritically using a DMCA takedown is still really lulzy

Neitsuke said:
I used third-party content under Fair Use

Commercial uses are less likely to be considered "fair use," though it’s possible to monetize a video and still take advantage of the fair use defense in some cases.

Claiming you're using something under Fair Use doesn't mean you are. There's a little thing called "Lying."
While I don't actually know how the law would see it in just being flashed on screen, and won't argue that, I will argue that people are capable of lying, even if they don't realize they are doing so.

Neitsuke said:
Yooo I looked more into it and it seems that this dude have used the picture for the thumbnail, one of those annoying idiots that use sexual thumbnails to sponge the views. If that's actually the case, then I'm afraid there is borderline no case of Fair Use here : Using a picture as a video wrap isn't transformative (More like clickbaitative lul) so it's all fine by me that video got removed even if a bit excessive, just a warning to change the thumbnail would have been fine, but still, her hypocritically using a DMCA takedown is still really lulzy

Had to look up the proper definition for Hypocritical because of this. It's apparently "Going against one's own feelings or opinions," not public or common opinions or feelings. Still, even if it is hypocritical, her actions are right this time.

The only complaint I would have about this is the "guilty until proven innocent" mentality that sometimes surface in these kind of instances. Even if you are proven innocent you will still have lost time and/or income and usually get no compensation for it and the opposing party may receive no repercussions in return, even when it's done out of malice (not saying that's the case here). Maybe I'm completely wrong, but that's my limited experience with these kind of things.

Furrin_Gok said:
It's apparently "Going against one's own feelings or opinions," not public or common opinions or feelings. Still, even if it is hypocritical, her actions are right this time.

It's hypocritical in that she makes a living from copyright protected content(drawing smut of characters that have a copyright).

The real question is, why would you even care? At worst nothing happens and at best it gives you more popularity (which probably leads to more sales) when people ask for sauce of the thumbnail. Putting strikes against YouTube channels is just going to make people hate you.

This topic is full of uneducated misinformation and deluded creator privilege.

Yes, Kayla has "the legal right to file a takedown notice", because that is not a legal action. By filing a takedown notice she is requesting Youtube to voluntarily remove something containing her content. It is their company policy that results in this being the end of the discussion and the Youtube video immediately being stricken. Youtube could choose not to do so, in which case if Kayla did not convince them or the video author to voluntarily edit or remove the offending content, she would be forced to perform actual legal actions such as filing a civil lawsuit. To point out that Kayla "has a right" that every single citizen has in every context is redundant.

While I haven't seen the actual video in question, from what I've heard The video's creator could easily have defended under fair use... if he had ever been given the chance. Fair use has fuck-all to do with whether content can be flagged for infringement. Fair use is a defense when you are actually standing in a courtroom explaining to a judge why it's okay that you used someone else's work. If the case has not gone to court, then fair use is legally irrelevant and you ought to stop throwing the term around like Xena's chakram.

Furthermore, there is no on and off switch for fair use. There are multiple factors all of roughly equal weight that are considered on a case-by-case basis alongside unspoken and non-quantifiable contexts such as prior history between the two parties / probable good or bad faith. In particular, a use can very well be commercial and fair - do you think all those English schoolbooks full of literary excerpts are free?

So in short:

• Copyright owners do not have the legal right to immediately instantly force you to remove content; they have the legal right to ask you to do so voluntarily and then sue you if you don't (albeit for large companies like Youtube, these are indistinct concepts)
• You cannot determine whether a use is fair before the case goes to court
• You cannot determine whether a use is fair based on any single variable such as whether the use is commercial or not
• You cannot state beforehand that a use is fair and expect this to mean jack shit. Even stupider is "No copyright infringement intended". This is the copyright equivalent of grabbing a kid's arm at the playground and hitting him with it and saying "Stop hitting yourself"

Other points raised in the topic:

• In order for a work to be a work for hire, both parties must explicitly agree to this in a contract. However, under some circumstances a commissioned work may be considered a joint work owned by both parties equally.
• Hypocrisy means implying you have a virtue, quality, or talent that you don't. In the modern era, we falsely presume that anyone who criticizes something is implying they're an expert or better at it than everyone else, so we call them a hypocrite as an excuse to ignore their point.
• I know several Youtubers who have succeeded in counterclaims for much more substantial use of prior work than this. Pyrocynical, as I recall, actually reinstated his account after three strikes through counterclaims - and he is a commentary & reaction channel so he often includes a minute or more of another Youtuber's video in every upload.

FibS said:
This topic is full of uneducated misinformation and deluded creator privilege.

Yes, Kayla has "the legal right to file a takedown notice", because that is not a legal action. By filing a takedown notice she is requesting Youtube to voluntarily remove something containing her content. It is their company policy that results in this being the end of the discussion and the Youtube video immediately being stricken. Youtube could choose not to do so, in which case if Kayla did not convince them or the video author to voluntarily edit or remove the offending content, she would be forced to perform actual legal actions such as filing a civil lawsuit. To point out that Kayla "has a right" that every single citizen has in every context is redundant.

While I haven't seen the actual video in question, from what I've heard The video's creator could easily have defended under fair use... if he had ever been given the chance. Fair use has fuck-all to do with whether content can be flagged for infringement. Fair use is a defense when you are actually standing in a courtroom explaining to a judge why it's okay that you used someone else's work. If the case has not gone to court, then fair use is legally irrelevant and you ought to stop throwing the term around like Xena's chakram.

Furthermore, there is no on and off switch for fair use. There are multiple factors all of roughly equal weight that are considered on a case-by-case basis alongside unspoken and non-quantifiable contexts such as prior history between the two parties / probable good or bad faith. In particular, a use can very well be commercial and fair - do you think all those English schoolbooks full of literary excerpts are free?

So in short:

• Copyright owners do not have the legal right to immediately instantly force you to remove content; they have the legal right to ask you to do so voluntarily and then sue you if you don't (albeit for large companies like Youtube, these are indistinct concepts)
• You cannot determine whether a use is fair before the case goes to court
• You cannot determine whether a use is fair based on any single variable such as whether the use is commercial or not
• You cannot state beforehand that a use is fair and expect this to mean jack shit. Even stupider is "No copyright infringement intended". This is the copyright equivalent of grabbing a kid's arm at the playground and hitting him with it and saying "Stop hitting yourself"

Other points raised in the topic:

• In order for a work to be a work for hire, both parties must explicitly agree to this in a contract. However, under some circumstances a commissioned work may be considered a joint work owned by both parties equally.
• Hypocrisy means implying you have a virtue, quality, or talent that you don't. In the modern era, we falsely presume that anyone who criticizes something is implying they're an expert or better at it than everyone else, so we call them a hypocrite as an excuse to ignore their point.
• I know several Youtubers who have succeeded in counterclaims for much more substantial use of prior work than this. Pyrocynical, as I recall, actually reinstated his account after three strikes through counterclaims - and he is a commentary & reaction channel so he often includes a minute or more of another Youtuber's video in every upload.

+1 Internets for you

FibS said:
Fair use has fuck-all to do with whether content can be flagged for infringement. Fair use is a defense when you are actually standing in a courtroom explaining to a judge why it's okay that you used someone else's work. If the case has not gone to court, then fair use is legally irrelevant and you ought to stop throwing the term around like Xena's chakram.

From what I have heard about Fair Use they have the legal obligation to consider if the video/material is Fair Use before they can file a DMCA takedown notice

why people get always so angry when artists get to choose what their art can be used for?

Mutisija said:
why people get always so angry when artists get to choose what their art can be used for?

Entitlement.

Fun legal discussion but this shit appears to be close to being resolved:

https://twitter.com/UberDanger/status/749201709205975040

I assume "remove the copyright strike" also means restoring the video.

Fenrick said:
Entitlement.

Pretty much this. It's almost always a "take one's ball and go home" situation. Except instead of a ball it's pixels that they uploaded to a publicly accessible internet gallery.