Is it Legal to Poop on YouTube?

By Sam Spartano, and Jameelah Ali

The Sky Had a Weegee. The Misadventures of Skooks. Frying Nemo. Pride Patties.

To most people, the titles above signify sheer gibberish. But to a specific subset of specifically silly people in the early 2010s, these were the Mount Rushmore of comedy. All four belong to a still-prevalent style of YouTube video referred to fondly as “YouTube Poops”. From a copyright perspective, “Poops” can be identified easily by their postmodern approach to parody, working in as many copyrighted works visually, auditorily, or psychedelically, as possible. In order to get an insider’s viewpoint on this video style, we spoke over email with James Phyrillas, a YouTuber who not only has spent years making his own “Poops” under his secondary channel, Schaff Classic, but also works with his editors to incorporate a similar style into the videos on his main channel, Schaffrillas Productions. In one 30-second clip from Phyrillas’ video “Pixar Poop Palooza”, the copyrighted works used for humorous effect include Finding Nemo; the song “Comfortably Numb” by Pink Floyd; Star Wars; The Incredibles; and the television show “The Office”.

The use of each of these works could give rise to its own distinct legal actions for copyright infringement, yet “Poop”-style videos continue to be made. There continues to be a large community of hundreds of well-known creators, and millions of fans. This essay will uncover how, through a combination of fair dealing, and protection for content hosting platforms, “Pooping” continues to remain a viable activity on YouTube. As this is a Canadian class, we will be discussing the fair dealing provisions in Canada’s Copyright Act, as opposed to the similar yet distinct fair use provisions found in United States copyright law.

Canadian Copyright and Fair Dealing

While Canada’s Copyright Act provides copyright holders with an expansive set of rights, it also seeks to allow for the use of copyrighted works in ways that further the public interest. Section 29 of the Copyright Act provides exceptions to the infringement of copyright when it is done for specific purposes, including criticism, satire, and parody. This is referred to in the statute as “fair dealing”. In the seminal case of CCH Canadian Ltd v Law Society of Upper Canada, the Supreme Court of Canada determined the various factors to be used when interpreting the fairness part of “fair dealing”. These include the purpose of the dealing; the character of the dealing; the amount of the copyrighted work used; the availability of reasonable, non-copyrightable alternatives; the nature of the copyrighted work; and the effect of the dealing on the market for the copyrighted work. Expanding on this discourse, the Court in SOCAN v Bell stated that fair dealing is an essential part of furthering the public interest objectives of Canada’s copyright legislation, and in helping to achieve the balance between copyright protections, and public access to works.

YouTube and Copyright

Ever since its inception, YouTube has found itself in a precarious position in relation to copyright law. When we asked James Phyrillas about the balancing of competing copyright interests on Youtube, he had this to say:

“YouTube generally doesn’t have the same regulations as broadcast television when it comes to the use of copyrighted images and footage. There’s far less red tape to go through since you can basically upload anything, and as long as it falls under the fair [dealing] umbrella, you’re golden. However, this is only in theory. In practice, YouTube is heavily biased towards [copyright owners] when it comes to the copyright system.”

Over the years, countless YouTubers have spoken out on this bias, and how their own work and livelihoods have been stifled at the mercy of what are often much larger and more financially impressive media operations. While this may initially seem like a frustrating and confusing imbalance on the part of YouTube, delving into the company’s history goes some way in explaining the flaws in the system.

On March 13th, 2007, the media conglomerate Viacom, filed a copyright infringement suit against the then-new YouTube. Viacom sought damages in excess of one billion dollars, enough to easily bankrupt the video hosting site at the time. Their claim cited over 150,000 instances of their television shows being uploaded without their permission. Youtube’s only defence was the statutory “safe harbour” provisions, officially the Online Copyright Infringement Liability Limitation Act (OCILLA), found within the Digital Millennium Copyright Act. Under OCILLA, if it could be proven that YouTube had “no knowledge” of whether an upload infringed copyright, then they would be exempt from claims of copyright infringement. Luckily for YouTube, there was a snag in Viacom’s case: The company was engaged in a “guerrilla” marketing campaign where hired marketing firms would upload Viacom’s own material, pretending to be authentic no-name users. Since Viacom themselves could not identify which uploads were sanctioned by them for this campaign, and which were not, it was impossible for YouTube to have “knowledge” of which videos constituted copyright infringement. Therefore, YouTube could legally be granted “safe harbour”. It was no surprise, when Judge Louis L. Stanton decided the case entirely in YouTube’s favour in June of 2010.

Sufficiently scared by this lawsuit, YouTube responded before the final judgement was even made by establishing their own internal copyright system, referred to as “Content ID”. Under this system, uploads are automatically scanned against an internal database of copyright- protected works submitted by copyright owners. If an upload does contain copyrighted material, it will either be blocked from public release, or may see its advertising revenue be given to the copyright owner. As James Phryillas mentioned above, this system is sensible in practice, but, as an automatic system, “Content ID” is bound to make mistakes. While this is potentially moderated by giving copyright owners the opportunity to make manual infringement claims on uploads, further issues can arise:

“ [The movie studio] Universal in particular has claimed and demonetized so many of my videos […] and while you can appeal their decision, more often than not, YouTube will not overturn these claims and [will] instead side with the company ignoring fair use laws. Sometimes you can even get malicious actors who pose as companies, causing your video to get demonetized due to the use of a background song that the person filing the claim does not even own. It’s a real mess that results in a minefield of ensuring that no single clip runs for too long, trying to find a border to put on a video to fight back against YouTube’s automatic copyright system, [and] numerous other headaches”.

Phyrillas’ frustrations are the ultimate culmination of YouTube’s requirement that they use an automated copyright detection system as their only effective defence against further 10-figure infringement cases. Even those who engage consistently in fair dealing face unfair blocks, loss of earnings, and continued claims from both legitimate, and illegitimate, copyright owners.

Is Pooping Fair Dealing?

As has already been discussed, each YouTube Poop is, at its core, a parody of a specific copyrighted work. Common targets include Pixar movies, episodes of Spongebob Squarepants, and, of all things, recordings of English author Michael Rosen reciting his children’s stories. Asking James Phryillas about the relationship between parody and his works, he stated, “I feel like parody encompasses basically anything that isn’t straight up unaltered piracy. For instance, if you keep the visuals the same but add new audio […] that inarguably qualifies.” When Phryillas says this, he is speaking of the replacement of some elements of a work with substitutes, specifically for comedic purposes. For example, in a recent video ranking Disney villains, Phyrillas discusses the character Gaston from the 1991 film Beauty and the Beast. Despite including plenty of original visual footage of the character, the only audio used has been edited to appear as if Gaston is singing about his insatiable craving for Taco Bell.

In the case of United Airlines v Cooper (Federal Court of Canada, 2017), Justice Michael L. Phelan set out the two requirements for a work to be considered parody:

The evocation of an existing work, while exhibiting notable differences
The expression of mockery or humor.

These relatively new guidelines are easily met when examining the works of James Phryillas, as well as other YouTubers. For example, the video “Prawn Srars” by YouTuber DaThings is built mainly out of footage from the series Pawn Stars, with the editing altering events in a way that makes it clear to the viewer that this is not a typical episode. In typical fashion, host Rick Harrison examines an antique rifle that a customer brings in; in atypical fashion, he accidentally shoots himself with it. Thus, mockery and humor have been applied in a way which brings about a “fair dealing” of Pawn Stars, a copyrighted work, for purposes of parody.

In order to best illustrate everything that has been discussed so far, we will now apply the factors of a fair dealing analysis, as established in CCH Canadian Ltd v Law Society of Upper Canada, to one of James Phryillas’ videos, “Peeter Phantom Thief Steals Jameson’s Pizza”:

Purpose of the Dealing – We have already established that most “Poops” are a parody of a specific copyrighted work. In this case, that work is the film Spiderman 2.
Character of the Dealing – The dealing is done in the matter of a video posted to a website. Given that this video can be streamed, it can be seen by anyone. While this can pose a problem in some copyright infringement cases, other factors should overshadow this one here.
Amount of Work Used – The video uses excerpts from just two scenes in the film, and the total footage adds up to less than ninety seconds.
Non-Copyright Alternatives – Given that the ultimate purpose is to mock the copyrighted work used, it was reasonably necessary for clips from the actual film to be used. as opposed to any non-copyright alternatives.
Nature of the Copyrighted Work – The copyrighted work is a widely known and distributed film, so copyright is certainly engaged here. However, again, given that the purpose here is parody, it is necessary for the work being used to be known to the viewer in order to completely understand the humor.
Effect of the Dealing on the Work – As for the effect that “Poops” have on the original work, James Phryillas himself put it well:

“I can’t say I’ve ever thought of any of my YouTube Poops as a substitute for watching a film, […] but I do think YouTube Poop is transformative enough to the point where [viewers] won’t get the same experience as they would from watching the original scenes. However, I do worry that many younger people might opt to watch a TikTok of scenes from a film rather than the film itself. A lot of people have discussed how attention spans in general have been getting shorter lately, and I’ve heard a lot of sentiments expressed that movies are too long now and not worth sitting all the way through”.

Phyrillas makes an important point here: His videos are a matter of expression on their own, not simple reproductions of parts of a copyrighted work.

As this analysis shows, in spite of, or perhaps because of, their reliance on copyrighted works, “YouTube Poops,” when done properly as parodies, are inherently covered under “fair dealing”.

Conclusions

It would certainly be understandable for copyright owners to be upset that their copyrighted works have been used as the basis for confusing, silly, and sometimes even vulgar YouTube videos. However, in spite of YouTube’s “Content ID” system so often showing an algorithmic bias towards copyright owners, “Poops” continue to be uploaded every day, and the community of creators who work in this style has not shrunk. In fact, many of them continue to make popular collaborations, with the “Peter Man” series of videos, parodying the films Spider-Man and Spider-Man 2, being two especially successful examples. The allowing of the “Poop” video style to thrive on YouTube (albeit with some hiccups) is an affirmation of a creator’s right to parody, and the importance of fair dealing copyright provisions in Canada, along with similar laws in other countries.

Works Cited:

Phyrillas, J. [Schaff Classic]. (2020, December 25). YTP: Pixar Poop Palooza. Youtube https://www.youtube.com/watch?v=BBBHbcSfRmc&ab_channel=SchaffClassic.

CCH Canadian Ltd v Law Society of Upper Canada, [2004] SCC 13.

Society of Composers, Authors and Music Publishers of Canada v Bell Canada, [2012] SCC 36.

Lemos, A. [EmpLemon], Viacom Sues YouTube for a Billion Dollars | Youtube Geographic, online: YouTube https://www.youtube.com/watch?v=qV2h_KGno9w&ab_channel=EmpLemon [13 December 2018]; Pub. L. No. 105-304, 112 Stat. 2860.

Viacom International, Inc. et al v. YouTube, Inc. et al, 718 F. Supp. 2d 514 (S.D.N.Y. 2010).

Anggadol, K., Copyright in a YouTube World, online: Canadian Lawyer https://www.canadianlawyermag.com/news/general/copyright-in-a-youtube-world/270012 [29 December 2015].

Phyrillas, J. [Schaffrillas Productions], Every Disney Villain Ranked, online: YouTube https://www.youtube.com/watch?v=2YhSZWL-mqs&ab_channel=SchaffrillasProductions [6 December 2024].

Phyrillas, J. [Schaff Classic], YTP: Peeter Phantom Thief Steals Jameson’s Pizza, online: YouTube https://www.youtube.com/watch?v=9Z6XVgN8CuM&ab_channel=SchaffClassic [21 November 2020].

Davis, J. [Jimmy Davis], YTP – Peter-Man 1, online: YouTube https://www.youtube.com/watch?v=hm2WlreyW7Y&ab_channel=JimmyDavis [3 November 2018].

Davis, J. [Jimmy Davis], YTP – Peter-Man 2, online: YouTube https://www.youtube.com/watch?v=iHBRoZMZEXM&t=3252s&ab_channel=JimmyDavis [21 November 2020].