Some argued that Donut Media wasn’t in the wrong, citing fair use while others say using a copyrighted photo without permission is plain stealing.
Editor’s note 8/3- a previous version of this article did not include a DM exchange between James Pumphrey and Alexi from Noriyaro. That’s been included and the blog post edited to reflect that.
When it comes to dealing with copyright issues among fellow content creators, when professional and cordial e-mails don’t do the trick, calling them out on social media seems to be more effective. Drift enthusiast based in Japan and Youtuber Noriyaro got the shock of his life when he found one of his watermarked photos included in a Donut Media video on Japanese Porsche Tuner RWB.
According to a series of Noriyaro’s Instagram stories saved as evidence, Donut Media reached out to Noriyaro, asking if they could use said photo.
“I’ve answered e-mails from the people who copy paste the wikipedia articles and forum posts for your scripts asking to use my photos for your content. I explicitly said no, I do not give you permission. Why are you doing this? James Pumphrey, I don’t want my content used in your content which you are using to sell sponsorships!“
After reaching out to Donut Media, James Pumphrey himself responded to Noriyaro on Instagram admitting that it was an editor’s mistake the photo was included, and he took full responsibility, offering to compensate him to smooth things over.
In an Instagram DM James shared on his account, he says,
“You may or may not believe me, but it was an innocent mistake made by an editor when she was compiling sources…I take responsibility, I’m embarrassed that we let that happen, and I want to make it right. You can send me an invoice and I will take care of it. We all share a passion for these cars. I know you don’t like my videos, and you’re right to call me out when we make factual mistakes, and I’m not gonna try to change your mind.“
Presumably, an invoice for his photo wasn’t enough, Noriyaro instead wanting his photo removed entirely.
Check out a copy of the saved Instagram Stories videos chronicling Noriyaro’s understandable anger below. Video courtesy of David Miller from this thread, linked here.
Here’s the Donut Media video in question.
And here’s a screenshot of Noriyaro’s photo on his site.
And here is the DM exchange between Noriyaro and James shared by James via Instagram.
At the end of the video Noriyaro calls out Rutledge Wood and Brian Scotto, who both had a small role in the RWB video, asking their opinion on this bit of photo-gate.
As of this writing, it’s been over three weeks since Noriyaro’s posted on Instagram calling Donut Media out. If you fast forward to 4:20 in DM’s RWB video, you’ll notice a cut where Noriyaro’s photo once was. Donut Media folded under pressure, and rightfully so, cutting out the offending image.
It’s even more obvious the video’s had a nip and tuck because, at that time stamp, the closed caption no longer lines up what he’s saying.
Just in case DM transcribes fresh captions, theses are the missing words that line up with Noriyaro’s photo.
But what really set Rough World apart from the others were how wide they were, with fenders extending way past the stock body lines.
Some commenters on Facebook and Instagram, where this back and forth’s been brought up, say Donut Media can use Noriyaro’s photo because of Fair Use, a doctrine in law that permits limited use of copyrighted material without asking permission.
The key word is limited.
Donut Media is definitely a “for-profit” content creator. One of the main reasons Donut Media makes videos is to connect automotive OEMS and brands with a certain demographic, and their videos do a good job doing that. They are not the news, and, although their videos are educational, they lean heavily towards entertainment.
Donut Media’s use was not, in any way, transformative in nature, a big prereq when determining fair use, nor was its use necessary for commentary on RWB history. If Noriyaro actually took the time to take legal action out of principle, this would be an open and shut case in his favor.
tl;dr- no it was not fair use, Noriyaro had the right to call them out.
James Pumphrey, caught in the crosshairs, blocked Noriyaro shortly after this social media fiasco.
.02
This is something that happens all too often, original content used without permission.
In this case, it was a simple editor’s mistake and I applaud Donut Media for attempting to make it right.
Reading Noriyaro’s exchange with James, it was, in my opinion, uncalled for to berate Donut Media over what he considers “poorly researched” videos “with many mistakes.” His distaste for their videos has nothing to do with this photo fiasco and shouldn’t have been included, an otherwise unprofessional exchange.
Not having to do with anything, how much does Donut Media make just from ads on that single video?
Generally, car youtubers make between $7-9 per 1,000 views.
Street Speed made a great video on his earnings two years ago and the numbers still hold up today. That RWB vid has about 1.49 million views and counting so, on the low end just on Youtube alone, they made about $11,000. Factor in how well the video’s made and that number’s considerably higher.
In light of Donut Media wanting to pay Noriyaro for his photo, I wonder why Alexi didn’t take the money?
How is it an editorial mistake when you steal someone’s content even more so when the content creator explicitly denied your request? Sorry, this just does not add up. And why should Alexi accept any form of monetary compensation when he clearly stated he does not like the content Donut creates and thus does not want to be associated with them. This is a perfectly reasonable and honest decision and while it may seem harsh to tell them why he dislikes them it was part of the argument why he doesn´t want to be associated with them. Seems more like Donut thought it would be better asking for forgiveness than for permission and were put in place. As a photographer myself I would have done exactly the same.
I mean I like watching Donut because they’re entertaining, and yes, somewhat educational, especially with shows like science garage, I also find it funny how this dude has been around since at least ‘09 (I’ve never heard of him but he states in one video on his story that the picture was from ‘09 so that’s the earliest I suppose I’ve known about him) and yet I’ve never heard of him, meanwhile Donut, who lean towards more entertainment and actually making history and car videos interesting and engaging and blown up over the last 3-4 years :0
Who gives a **** about noriyaro anymore though