News: YouTube has removed Smosh’s mega-popular “Pokemon” video after receiving a copyright DMCA notice from Shogakukan Production Co. Ltd. The Pokemon video was the 4th most watched video ever on YouTube, with over 24 million views. To my knowledge, this is the most popular video ever removed by YouTube under a DMCA notice. By the way, if you don’t know who “Smosh” is, it’s a pair of 20-year-olds Anthony Padilla and Ian Hecox. They are the No. 1 Most Subcribed Director on YouTube, and they have the Most Views All-Time on YouTube of any amateur or user-generated content. Smosh, in other words, is the top of the heap at YouTube.
Analysis: This is a close, perhaps questionable, call. The Smosh boys did use the “Pokemon” theme song for their video, but they seemed to me to be parodying the whole Pokemon character, with a pretty over-the-top lip synch and use of Pokemon stuffed animals.
A parody fair use is permitted under copyright law, the only question is whether too much of the copyrighted work is taken. Unfortunately, that question is determined on a case-by-case basis. And, in this case, YouTube appears not willing to risk falling outside the DMCA safe harbor, so it chose to follow the more expedient path under the DMCA of taking down the video.
If you want to see if the video should be considered a parody fair use, I believe a version is still up on Veoh and probably elsewhere on the Internet.