Dear MxR Plays,

I’m going to say something to you that I doubt you’ve heard very much. In your dispute with Jukin Media, you’re screwed.

The essence of why you’re screwed is clear. You have no idea what fair use is. Let me break it down. Fair use is when you excerpt a portion of someone’s work in a transformational manner. It’s an inherently dodgy concept, I grant, but it breaks down into four things: that your use is a parody, educational, critical, or for research. While there are considerable blurry areas, there are also lots of clear ones, too. To my eyes, you’re not near the line, guys.

In this video, Noah Get the Boat, you use four pet meme videos. You do it without attribution and, indeed, mostly without commentary. You drop the videos into your work, using them for what is their intended purpose – to make people feel good after seeing something nasty on the Internet. It’s not parodic, educational, critical, or research.

Which is to say… from where I sit, you’re legally and morally in the wrong, arising from your ignorance of fair use. (Fortunately, it is also clear that you are acting out of ignorance and not malice, which is legally important. It means there won’t be any criminal charges coming your way.) Because, honestly, in the video I saw, you’re not even near the line of fair use. You’re just dumpin’ stuff into your video, someone else’s work, to sell your platform.

Get yourself a lawyer and negotiate with Jukin Media if they’re still interested in negotiating. Negotiate to cover not only these six instances but any further instances that might come up. Yeah, you’re going to spend thousands of dollars.

Moving forward, you might want to gain permission to use videos beforehand if you intend to use them the way you do in Noah Get the Boat. Or, at least, use stuff that’s in the public domain, or educate yourselves about what constitutes fair use and apply the standards of fair use to every piece of media you review. Every piece without exception.

I acknowledge that this will make your channel more challenging to manage. But your channel’s popularity dramatically increases the odds of people finding their work being used by your platform and increases the odds that people will come after you because your platform is profitable. Not many artists buy LA-area condos on the proceeds of their YouTube channel. Hell, I’ve been an artist longer than you’ve been alive, and I’m sure you make more in one month than I’ve ever made creating things! This does, in fact, signal that you’re a target because it makes no sense to sue the poor. Even if you win, you get nothing, after all, because they’re poor. Can’t get blood from a stone, amirite? They can, however, get blood from someone who has used the proceeds of their online platform to buy an LA-area condo.

Honestly, it’s a good problem to have.  You’re successful enough to be worth suing.  I wish I had that problem!

It will be humbling, but it’s probably the best chance you’ve got.  Regardless, good luck.

Your friend, Kit.