DECLARATION AND COUNTERNOTICE OF ALLEN ASCH REGARDING YOUTUBE VIDEO TITLED:
“Did Pixar Rip Off Pee Wee?”
I, ALLEN ASCH, declare as follows:
I am the person who created, controls, and uses the YouTube account under the username “LiberalViewer.”
I reside at XXXXXXXXXX, Sacramento, CA 95821 and my home phone number is (916) XXX-XXXX.
My home address is within the jurisdiction of the United States District Court in the Eastern District of California, I consent to the jurisdiction of that court, and I will accept service of process from Herman World, Inc., and/or its agents at my home address.
On August 3, 2007, YouTube notified me that, as a result of a third-party notification by Herman World, Inc. claiming that my material is infringing, YouTube had disabled access to the following material I uploaded to YouTube:
My video titled “Did Pixar Rip Off Pee Wee?” at the URL, http://www.youtube.com/watch?v=EM6akEO_XV8.
Although I am no expert on intellectual property law and my study of the subject provided murky answers at best, I am informed and I believe in good faith that, pursuant to 17 U.S.C. § 107, my video fits within the FAIR USE exception to the copyright laws for the following reasons:
1. My video is noncommercial and its purpose is to educate people on public issues and provide media analysis/criticism and commentary that transforms the fairly used materials into something substantially different. Ironically, the issues my video analyzed had to do with intellectual property. My 30 seconds of narrated commentary raised issues of copyright/trademark infringement, homage, and coincidental resemblance by showing a short clip of the green, one-eyed monster “Roger” from the TV show “Pee Wee’s Playhouse,” comparing it to a short clip of the green, one-eyed monster “Mike Wazowski” from the Pixar movie “Monsters, Inc.” and asking: “Did Pixar Rip Off Pee Wee?” The issues I raised were, in fact, issues of public concern as is evident from the over one hundred comments generated by my video that are still available online at: http://www.youtube.com/comment_servlet?all_comments&v=EM6akEO_XV8.
2. The fairly used material has been “previously published” in that it originally aired on the CBS network in the 1980s and, and more recently, regularly aired on the Cartoon Network cable station.
3. The fairly used material is a short clip from a 30 minute television episode (the portion of the fairly used material with unmuted audio is less than 26 seconds in length).
4. My video has a small audience (the YouTube website says this video got less than 13,000 views, some of which are not unique) and, as something of a “fan tribute,” I believe my video actually increases the market for Herman World’s video, if it affects that market at all.
I declare under penalty of perjury that the foregoing is true and correct except for those things stated on information and belief, and, as to those things, I have a good faith belief they are true.
Executed August 4, 2007, at Sacramento, CA.
YouTube username “LiberalViewer”