The problem isn’t the mascot itself – a cute little sheep named Buck.
And the problem really isn’t even that a lot of people decided, whether seriously or in fun, that they liked Buck just a little too much.
The problem is that Kiwibank and its lawyers decided that they didn’t appreciate Buck’s fandom. Because much of the Buck-inspired content was being shared on US-based social media platforms, they turned to American legislation to have the content taken down.
For a truly excellent but not entirely safe-for-work telling of the story, check out Hayden Donnell’s piece over at The Spinoff.
I’ll stick to its legal and copyright aspects. We’ll start with the American takedown notices and then get into parody and fair-use.
America’s Digital Millennium Copyright Act, the DMCA, tried to strike a difficult balance. In the late 1990s, Spotify didn’t yet exist. Those wanting online music generally found it on copyright-infringing sites.
American law had already set a general principle – Section 230 of the Communications Decency Act – granting online platforms broad protection from being treated as the publisher of user-generated content.
The DMCA created a separate and conditional safe harbour for copyright. A platform maintains its safe-harbour protections if it takes things down quickly after receiving a complaint. So, they usually do take things down quickly.
A person whose content is taken down can file a counternotification. That requires providing identifying information and consenting to American federal court jurisdiction if anyone wants to contest the case. The issuer of the initial takedown notice can then choose to sue the identified person for copyright infringement. If it does so, it must inform the platform. Otherwise the platform will put the content back up after a few weeks.
In short: take it all down, let counternotifications sort it out later.
It doesn’t work very well, but nothing could work particularly well. There are no good solutions, just options that fail in different ways.
Copyright holders using automated tools would issue takedown notices indiscriminately, often catching things like videos of a toddler dancing where a snippet of music was included in the background. A lot of content that did not infringe copyright was taken down. And staying on top of infringing content was a game of whack-a-mole.
In principle, companies issuing takedown notices were supposed to first consider whether a fair use exception applied. American copyright law protects content for decades longer than is justifiable on any reasonable economic basis. But it also provides important fair use exceptions around things like parody and commentary.
The dancing toddler mentioned earlier turned into a Ninth Circuit precedent: Lenz v Universal Music Corp.
Stephanie Lenz posted a short home video of her kids dancing while a Prince song, with poor audio quality, played in the background. Universal told YouTube to take it down. Lenz filed a counternotification claiming fair use and then sued under section 512(f), alleging that Universal had knowingly misrepresented the video as infringing by failing to properly consider fair use.
The Ninth Circuit Court of Appeals found that copyright holders making DMCA claims must consider fair use prior to sending takedown notifications. But simply getting the fair-use question wrong is not enough to make a company liable. Lenz had to show that Universal had knowingly misrepresented the position – a difficult standard to meet.
And that brings us back to Kiwibank and its now-famous sheep.
Some of the reported takedowns present very strong fair-use cases.
Reposting a company’s advertising image to make a joke about the mascot is commentary on the copyrighted work. Commentary and parody can qualify as fair use. This kind of use has a strong claim.
A fan’s reimagining of the mascot gets a bit more difficult. Copyright holders have broad rights over derivative works, but fair use can still apply.
For example, if you wrote a book set in the Star Wars universe using Star Wars characters, but the plot was entirely your own, it would be a derivative work and would likely require the rights holder’s permission.*
But a parody image of Star Wars characters, particularly one making a joke about the characters themselves, could have a strong fair-use claim.
It is similar for parody versions of Buck the Sheep. Redrawing the character to make fun of the mascot, the advertising campaign, or the bank’s reaction to the controversy could have a strong fair-use claim. A comic book recounting the adventures of Buck, safe-for-work or otherwise, without parody as a purpose, would have a much weaker case.
Last week, the Free Speech Union published an open letter to Kiwibank and its lawyers. It pointed to the decision in Lenz, reminding everyone that they were supposed to have considered fair use before issuing DMCA complaints.
The FSU asked that the DMCA notices be withdrawn for content that is clearly protected fair use or otherwise not covered by any copyright held by Kiwibank.
According to The Spinoff, Kiwibank’s takedown notices aimed to protect people from ‘harmful content’ and to address misuse of the bank’s intellectual property. But the DMCA isn’t about protecting people from harmful content. It’s about copyright. Content that is fair use under American copyright law does not become infringing just because someone views it as harmful.
Sadly, New Zealand copyright law still has no express protection for parody or satire. The Copyright (Parody and Satire) Amendment Bill was before select committee when Parliament dissolved for the election, so the Bill lapsed.
After the election is over and we can all come out of hiding, hopefully that Bill will re-emerge. Ideally the Bill could be strengthened by including protection for audiovisual materials. The original short Buck video included in the tweet that kicked this all off might not be protected against a copyright claim.
I can think of just the mascot for the strengthened legislation.
Dr Eric Crampton is Chief Economist at the New Zealand Initiative. This article was sourced HERE
The problem is that Kiwibank and its lawyers decided that they didn’t appreciate Buck’s fandom. Because much of the Buck-inspired content was being shared on US-based social media platforms, they turned to American legislation to have the content taken down.
For a truly excellent but not entirely safe-for-work telling of the story, check out Hayden Donnell’s piece over at The Spinoff.
I’ll stick to its legal and copyright aspects. We’ll start with the American takedown notices and then get into parody and fair-use.
America’s Digital Millennium Copyright Act, the DMCA, tried to strike a difficult balance. In the late 1990s, Spotify didn’t yet exist. Those wanting online music generally found it on copyright-infringing sites.
American law had already set a general principle – Section 230 of the Communications Decency Act – granting online platforms broad protection from being treated as the publisher of user-generated content.
The DMCA created a separate and conditional safe harbour for copyright. A platform maintains its safe-harbour protections if it takes things down quickly after receiving a complaint. So, they usually do take things down quickly.
A person whose content is taken down can file a counternotification. That requires providing identifying information and consenting to American federal court jurisdiction if anyone wants to contest the case. The issuer of the initial takedown notice can then choose to sue the identified person for copyright infringement. If it does so, it must inform the platform. Otherwise the platform will put the content back up after a few weeks.
In short: take it all down, let counternotifications sort it out later.
It doesn’t work very well, but nothing could work particularly well. There are no good solutions, just options that fail in different ways.
Copyright holders using automated tools would issue takedown notices indiscriminately, often catching things like videos of a toddler dancing where a snippet of music was included in the background. A lot of content that did not infringe copyright was taken down. And staying on top of infringing content was a game of whack-a-mole.
In principle, companies issuing takedown notices were supposed to first consider whether a fair use exception applied. American copyright law protects content for decades longer than is justifiable on any reasonable economic basis. But it also provides important fair use exceptions around things like parody and commentary.
The dancing toddler mentioned earlier turned into a Ninth Circuit precedent: Lenz v Universal Music Corp.
Stephanie Lenz posted a short home video of her kids dancing while a Prince song, with poor audio quality, played in the background. Universal told YouTube to take it down. Lenz filed a counternotification claiming fair use and then sued under section 512(f), alleging that Universal had knowingly misrepresented the video as infringing by failing to properly consider fair use.
The Ninth Circuit Court of Appeals found that copyright holders making DMCA claims must consider fair use prior to sending takedown notifications. But simply getting the fair-use question wrong is not enough to make a company liable. Lenz had to show that Universal had knowingly misrepresented the position – a difficult standard to meet.
And that brings us back to Kiwibank and its now-famous sheep.
Some of the reported takedowns present very strong fair-use cases.
Reposting a company’s advertising image to make a joke about the mascot is commentary on the copyrighted work. Commentary and parody can qualify as fair use. This kind of use has a strong claim.
A fan’s reimagining of the mascot gets a bit more difficult. Copyright holders have broad rights over derivative works, but fair use can still apply.
For example, if you wrote a book set in the Star Wars universe using Star Wars characters, but the plot was entirely your own, it would be a derivative work and would likely require the rights holder’s permission.*
But a parody image of Star Wars characters, particularly one making a joke about the characters themselves, could have a strong fair-use claim.
It is similar for parody versions of Buck the Sheep. Redrawing the character to make fun of the mascot, the advertising campaign, or the bank’s reaction to the controversy could have a strong fair-use claim. A comic book recounting the adventures of Buck, safe-for-work or otherwise, without parody as a purpose, would have a much weaker case.
Last week, the Free Speech Union published an open letter to Kiwibank and its lawyers. It pointed to the decision in Lenz, reminding everyone that they were supposed to have considered fair use before issuing DMCA complaints.
The FSU asked that the DMCA notices be withdrawn for content that is clearly protected fair use or otherwise not covered by any copyright held by Kiwibank.
According to The Spinoff, Kiwibank’s takedown notices aimed to protect people from ‘harmful content’ and to address misuse of the bank’s intellectual property. But the DMCA isn’t about protecting people from harmful content. It’s about copyright. Content that is fair use under American copyright law does not become infringing just because someone views it as harmful.
Sadly, New Zealand copyright law still has no express protection for parody or satire. The Copyright (Parody and Satire) Amendment Bill was before select committee when Parliament dissolved for the election, so the Bill lapsed.
After the election is over and we can all come out of hiding, hopefully that Bill will re-emerge. Ideally the Bill could be strengthened by including protection for audiovisual materials. The original short Buck video included in the tweet that kicked this all off might not be protected against a copyright claim.
I can think of just the mascot for the strengthened legislation.
Dr Eric Crampton is Chief Economist at the New Zealand Initiative. This article was sourced HERE
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