Last week, this was going to be a very different blog! Last week I was going to report on how CBS was enforcing a copyright hold on a fan-made video that was critical of STAR TREK: DISCOVERY. The fan had tried to monetize the video on YouTube (showing ads), and because there were clips from Star Trek episodes (from multiple series) in the critique, it got automatically flagged for a copyright hold.
The fan, who goes by her YouTube account name PsychoSpider, challenged the copyright hold claiming an exemption for Fair Use. Ah, fair use! Ever since AXANAR fought back against CBS and Paramount when sued for copyright infringement, numerous fans (including yours truly) became “armchair experts” in the fair use defense. In short, there are certain cases where it’s okay and even legal to use someone else’s intellectual property without first getting their permission. And one of those cases is when the person is using copyrighted material for purposes of criticism, even when the criticism might generate revenue.
(Don’t just take my word for it! Read about Fair Use on the website of the U.S. Copyright Office.)
One of the reasons that Fair Use exists for criticism is because it is generally assumed that a copyright holder would be unlikely to ever grant permission to someone to use their intellectual property only to complain about it. So Fair Use was created to try to balance the opposing forces of copyright protections and freedom of speech. It’s not always an open-and-shut case, and on websites like YouTube, there are always going to be cases of the unreliable algorithm flagging innocent posts, but in general, critical speech is protected even when copyrighted intellectual property is used. The problem is, you usually have to pay a lawyer lots of money to get a court to agree with you.
That wasn’t an option for PsychoSpider. Instead, she simply filed her hold challenge, claiming Fair Use, and waited. It didn’t take long for CBS to respond with a big, fat “NO!” She tried again, and again her challenge was rejected. She would not be allowed to monetize her video on YouTube.
I was all ready to write a blog about this outrage. I’d interviewed PyschoSpider, contacted CBS for an official comment (didn’t get one), and was nearly ready to hit “Publish.” And then something totally unexpected happened…
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