Why are pole dancers’ videos getting taken down on Facebook and Instagram for copyright violation? And who benefits from this?
That is the question I want to examine today…
First things first, I have copied this section from the gov.uk website which details the UK fair dealing laws, so that you can get an idea of what the actual specifications for ‘fair dealing’ (aka fair use) and copyright are:
‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?
Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include:
- does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.
- is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used.
When it comes to using copyrighted music in your videos, either an overlaid track or playing in the background, the automatic assumption would be that they come under fair dealing laws listed above, because why wouldn’t they? As long as you are not using the music for commercial gain, then you would think that usage would be considered fair. Furthermore, if the song is playing in the background then foreground noises would arguably protect the song’s copyright because no one would be able to copy a salable version of the song from your video; it would be ‘ruined’ by the foreground noises, and therefore would not act as a ‘substitute’ for the actual song. Instagram is the most surprising one, because you would again think a one minute clip would not affect the sales potential of a 4 minute song, as it cannot replace or act as a substitute for the original song.
However, fair dealing laws are a little bit confusing, and there seems to be a lot of grey areas, especially with the explosion of social media. How do local copyright laws translate to global platforms such as social media? In theory the Berne Convention provides an international standard for copyright that applies globally. However, the EU also have their own directives in place, designed to try and homogenise copyright regulations. In any case, rules about fair usage seem to be pretty consistent internationally, but despite this there is still a lot of confusion on what constitutes a copyright violation and what does not.
There has been many legal cases based around fair use vs copyright, and the results have been varied and, at times, inconsistent with each other. There isn’t one set precedent that future cases can be judged against, as each case is decided according to individual judgments and circumstances. You can’t really predict if what you are doing constitutes as fair use because the laws themselves aren’t exactly clear cut. I think this is why social media platforms such as Facebook and Instagram have turned to this scatter-gun approach of just taking down videos left, right and center.
On the face of it, I find it difficult to see who benefits from these social media copyright policies. Surely it would be more productive (and profitable), for music artists and their record companies, for copyright to be specifically targeted at those who illegally download music and actually take away from the income of artists. I have always paid for my music, and now I pay for my spotify subscription too, so when I am playing music in my pole dance videos I have paid the artist already, and the rest is fair dealings – right?
Furthermore, when dancers use an artist’s song in their videos they are giving them free promotion. I have seen countless times someone commenting on an Instagram video to ask what song is playing. Pole dancers, dancers, and other social media users, are promoting music, and helping to raise the profile of the artists they dance to. Nowadays, music artists make a huge proportion of their income from touring, merchandise and endorsements, which are only enhanced by people dancing to their work and sharing this through social media. So, if we are not negatively affecting the potential revenue for a song why are videos getting taken down? Do artists really want this kind of ‘protection’? I would like to believe that artists value people expressing themselves to their music, more than they do a vague, possible copyright infringement that does not even impact on their income.
I respect and understand copyright laws. Music licenses for gyms and restaurants make complete sense to me, and if you want music for a commercial video that is promoting your brand or business, there is a lot of inexpensive stock music you can buy . But most people are not using music for this purpose.
There is a whole community of people using these songs in good faith, and yet they are being targeted by over-sensitive copyright sweeps made by robots (not even actual humans). This is causing many dancers to think ‘why even bother?’. Ironically, laws that are designed to help foster and protect creativity are actually having the opposite impact on those who rely on music for their art form to be appreciated. This isn’t just an issue in the pole dance community; Youtubers, and Vloggers on Facebook are having issues with their videos being taken down when they have used video clips from other sources, despite the fact that the videos are clearly in line with fair use / fair dealing laws – it is a mess that social media platforms need to address, because like I said, they are stifling creativity whilst benefiting… who exactly? The bots used by these social media platforms are not designed to understand the nuance of copyright law. If there is a huge grey area in real life, that most humans struggle to apply, then how can a bot be expected to do a good job of monitoring and enforcing copyright?
So, what can we do about this? I’m not 100% sure to be honest, but social media platforms need to realise that a change in approach is required. In the mean time here are a couple of steps you can take:
1. Dance to lesser known artists and indie labels. These guys are far less likely to come up in copyright sweeps or request a take-down of your videos. Better yet, include a credit to the independent artists you have danced to, and you can help to promote their music to a wider audience. This is something I’m going to try and do more often in future myself.
2. You can in theory slow down or speed up your videos to get past certain copyright sweeps. Several polers have tried this method and re-posted videos that were previously taken down.
3. Appeal video removals. If Facebook or Instagram take down your video I think you can appeal the action. If you let them know that your video is not violating any laws, and in fact is compliant with fair dealings, then you should be able to get your video reinstated. However, I have no personal experience of this process yet so I am just going from what I have seen other polers saying.
To answer the question ‘who benefits from these copyright based video removals?’ I would struggle to name one person – I don’t believe the record companies or artists benefit, and the pole dancers certainly do not benefit.
What do you think about the new copyright policies on Facebook and Instagram? Have they impacted on what you post or how often you post? Do you know any musicians, and what is their opinion on this? Is there a side to the law that I am missing, and these policies are actually extremely beneficial? I would love to hear what you think so leave a comment on this post, or on my social media.