On Friday, we wrote about the ridiculous situation in which Lord Finesse issued a takedown for Dan Bull’s video that was critical of Finesse’s lawsuit against Mac Miller. Over the weekend, Dan decided to do a “documentary” style video about the situation, entitled CENSORED BY COPYRIGHT. It’s eight minutes, and worth watching in its entirety:
It does a good job laying out both the legal (fair use, fair dealing) and moral (culture, the nature of hip-hop building on itself) reasons for why Dan believes he’s in the right. But it also highlights the chilling effects at play. Dan can put in a counterclaim, but if he does so he risks (1) a lawsuit from Finesse and (2) losing his entire YouTube channel, with which he’s spent years building a massive following… and (1) is not a particularly far-fetched threat, given that Finesse did, in fact, just sue Mac Miller for $10 million. Clearly, he’s got lawyers and he’s not afraid to use them.
In the meantime, Lord Finesse posted something on his own Facebook account, implying that Dan Bull has no fair use claim, because he has ads on his YouTube channel. Of course, that’s not quite how fair use works. While the fact that Dan might make some money could play into whether or not it’s fair use, the fact that you monetize your work does not automatically mean you lose fair use protections. As Dan notes in his own comment, news organizations — magazines, newspaper, TV news and radio — are all for-profit ventures, and are probably the biggest users of fair use. What Dan was doing here was providing commentary on the news in the same way that a news program or magazine might.
So while Finesse claims that “there’s a difference” between presenting an opinion and making money on ads, that’s hard to square with reality, where lots of people make money while also presenting their opinions.