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Thank you for the talk @Legitimate!
I got intrigued by this bit. Let’s step into the “case by case” realm… How should one consider Fap Hero videos?
Essentially they are one branch of PMV that “creates a compilation set of porn synced to music”. However with the addition of a beatbar, instructions and sometimes a unique plot, one may argue that the work invites a different form of engagement than the original work. Would that be considered transformative enough?
My bad, i was referring to these tiktok pmvs.
Confused them with legit ones for some reason.
Had to edit my post
You might clarify, that this is what valid for US jurisdiction.
Any person outside that might be subject to other law(s).
Another question is what happens if someone takes a tiktok video with a minor and use it in a PMV. I assume that will fall under criminal law and not civil law.
That can be argued if pushed to that extent. But that can be argued in the other direction. Adding addition elements can transform to give new meaning to the content but in most cases it doesn’t beat the clause of “taking the heart of the content”. Just having a scene from an H-anime there can be argued as the heart of content. Obviously having smaller segments from copyrighted work can help you in this area.
It’s very tricky this area on how to deem something transformative in terms of fair use but at the end of the day it realistically never stretches to this point. If someone creates a PMV, FH, or CH and the original owners of the media submit a DMCA, there isn’t much the creator of the compilation or edit can do to fight it other than store it in a personal drive folder/mega or reupload elsewhere. And realistically, an original copyright holder using more harsher actions to fight this will cost more on them and not be an efficient use of money or time. 
Far from me to kink shame anyone but could we get a “Lawyering fetish” tag or something for topics like this one 
In the context of this forum, this forum doesn’t host media beyond screenshots and short gifs that likely don’t represent a questionable amount of the original piece of content. Neither of these are likely to spark a cease and desist, let alone a DMCA notice(especially since it is user submitted).
In the context of PMV creators, more than 90% of every PMV is a copyright violation. The only exception might be intro/outro and beat bars, if they exist. There could be an argument that a beat bar could be a continuous critique of a song matched to a video that was edited to also be relevant to the beat bar. It’s only a potential argument, not a guarantee. Just chopping up a video to a song has very little defense as being fair use. The argument against it would be what the potential viewer would be getting out of the original piece versus the modified piece to show how transformative it is. This is how they show that erotic media becoming a mix of erotic media hasn’t transformed the how/why viewers engage with it. My opinions on how fair use is applied are formed from cases like h3h3 vs matt hoss and other similar fair use cases where the argument is that the new content is transformative. All that being said, at the worst, creators will get a C&D or DMCA notice(legal threats to stop, but not a lawsuit as a first step) as long as they are not monetizing the videos.
The actual video hosts are continuously getting DMCA take down notices. Even mega has videos taken down all the time and they require someone to have the direct link to the file to know it even exists. Having a video hosting site that may have DMCA actionable content is only survivable if all the content is entirely user submitted. This gives a level of protection, but only if they have a DMCA portal for such notices to be easily actioned. Any host, that doesn’t have an easy way to receive DMCA notices or hosts DMCA violating content that was not user submitted, are just waiting to be taken to court. This is a fast track to legal fees in a six digit area(potentially higher) in hopes of not going to prison. The bottom line for hosts is that they are only subject to the laws of where(geographically) the content is being hosted until someone leans on the websites internet host to have it removed(Just pointing out that even finding a place where it is legal isn’t the end).
The user level is generally free of any legal obligation as long as you’re not broadly sharing the content. This obviously depends on local laws of the user. I’m sure somewhere in the world it is a crime.
NONE OF THIS IS LEGAL ADVICE, I AM NOT A LAWYER.
Relevant context.
Fair use is still there, but often not realy needed because lawsuits are covered diffirent here. For individuals, you often have some government protection systems. These can cover lawyer costs etc. A company cannot use those advantages, so they are always paying. This makes most companies not try if they cannot even get more money back then they invest.
And there are a lot of loopholes here. In some countries defending the company, in some countries defending the defender. Germany is being one of the worst here, the netherlands one of the best (cant remember which one was actualy the best, but the netherlands at least have the downloaders protected).
This stuff is difficult, and therefor many companies wont bother with small cases. Hence, fair use is preserved and no special laws have to be made to cover this.
And then there is the part in politics that whatever party wants to protect those companies getting a very negative response, and usualy will be kicked out the next election cycle. No politician wants to go there, so most of them have decided to be very protective towards the downloaders (mass uploaders are generaly accepted to be hunted on).
The only reason why fair use is rarely used as a term, is because we generaly dont get these cases in lawsuits to begin with. In most cases its only people that have mass uploaded. And the other cases are often handled through an arrangement without lawsuit (usualy comes down to several hundreds of euros, after which you have a clean slate again, even if they did miss a few other aspects). If fair use has to become part of a lawsuit, and the lawsuit realy needs to check this, in most cases the defender already won (when this argument shows up, its no longer about an illegal upload or download. and a lot of other aspects show up, as in this case the marketing effect is also considered part of it). Wasting resources on the law department is illegal, and can nullify lawsuits.
Thats because deepfakes are new, and in the current society not widely accepted and available yet. If deepfake videos only take 10mins to generate, this will be diffirent. And i think the porn business will even adapt to it by simply providing models (which are then still based on real persons), which the deepfake software then can use to make whatever the user wants.
And an advantage here is that those people now also in their own private life arent going to be as easily recognised as such actress anymore, since its mostly deepfakes anyway (yes, the video recording itself is done by a few people, but its irrelevant who they actualy were).
Sure, some aspects can end up worse, but this is currently just a too new aspect to realy get any grip on the possibilities and accepted limitations on how far they should go.
The real deepfake issue atm is political. Once deepfakes are extremely common (and generated in <10min with very high realism), no video will be blindly trusted anymore to be real. Just as much as any politician singing dragostea din tei has learned people enough about how easy it is to already make certain content.
Consensus being demanded is already an argument that is being weakened all the time. People blindly ignore the part that google and facebook are trying to track you into soo much detail, its actualy a very big risk. Google probably knows your sex orientation better than you do yourself, and can steer you into whatever direction it wants. As long as people dont understand this part, they wont understand the deepfake part either.
probably the worst take i have seen on this forum and the fact that its a company saying this threat without any evidence is worrying
lets be fair. doublevr was not making a threat. All they were saying is that specifically for the TikTok pmvs there is a high/higher chance of legal troubles.
I believe this stems from the fact that unlike regular pmvs which use already adult material some of these use tiktoks use clips which are not already adult content and may accidentally use content from underage models. In these instances the law on revenge porn or child porn could come into effect depending on your location. No one knows for sure but its a fair warning that you dont want to end up being the test case.
I’m not going to get into the moral argument for using peoples content for sexual purposes when this was not the intent as where you draw the line is going to be different for different people.
Right. I’m surprised these TikTok PMVs have a free pass here given how much problem revenge, minor, deep fake and everything non consensual has brought.
Many people have got to jail for that shit and this has nothing to do with corporate. It’s just a criminal thing to do.
I can’t wait to see victims of TikTok PMV’s bringing to justice those stupid motherfuckers who make these videos and everyone involved distributing these.
Should it though? Making porn video without the consent of the persons in them should be a big no for everyone in my opinion.
Should be, unfortunately some people here don’t show any form of empathy when it comes to these things. Best we can do is try to change their point of view but in many cases it’s already too late.
With regards to deepfakes, I think having the sentiment that it will be so commonplace because it is easy, it should be considered ok/ legal, will not fly in the long run.
The only reason deepfakes are even talked about is because face swap technology became a hot topic on the news. Fake photoshopped nudes have been a thing in internet culture since the early 90’s and faceswapped porn has been a thing since the late 2000’s.
I really just didnt want to get into what aboutism. With any PMV there is a spectrum that goes from “you are a monster” to “oh well yeah thats probably fine.” I do think its useful to pause and reflect where the line is for yourself though.
In many countries its not illegal to make a derived work from something in the public domain. Uploading to tiktok generaly make it public as there is no paywall behind it. If they didnt want it to go public, they shouldnt have used tiktok, or at least reported the account.
Yes, they are still not allowed to make money, and must still give credit to the original author (a trademark log, or anything that refers to the original channel is fine on that).
They are however not allowed to change the context, and this can go a bit further. For example, you arent allowed to change the subject of the video that was used. That part must be preserved. But you can shorten it. That shortened part then also has to follow certain rules to avoid a change of context, but in general shortening it is fine, and placing it in a compilation also is. What isnt allowed is changing the subject (for example if a video wasnt ment to be porn related, then you cannot use that as a startup for a porn compilation). But in this, the account can define the subject. If its an account of a porn actress using an alias, that alias is always going to be related to it, and video context becomes irrelevant for that.
The main issue isnt that people use these for PMVs, its people expecting that dumping something in the public domain to still follow their strict rules.
Not just that, in most cases the PMVs alter the videos enough to make them recognisable, but not usable as original content source either. Again a part that protects the PMV maker since it doesnt negate the original restrictions on the video either.
And that is purely because you arent making money from it. The moment you do, all of this changes as then you are required to pay the original author.
The laws are very diffirent per country. But in the EU they are often a lot more forgiving, which for coorporations (and in this case, porn actresses promoting themselve - and theirfor their own business model - through tiktok) usualy ends up in a less convenient way.
