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Step 2: Decide if your video is fair use

If your video was blocked for copyright reasons, either by an automated Content ID match or by a DMCA notice, you will have to decide if your video falls under the "fair use" exception to copyright, or if you had some other kind of authorization to use copyright content (such as getting permission from the copyright holder).

As described on the ChillingEffects website, "when a copyright holder sues a user of the work for infringement, the user may argue in defense that the use was not infringement but 'fair use.' Under the fair use doctrine, it is not an infringement to use the copyrighted works of another in some circumstances, such as for commentary, criticism, news reporting, or educational use." These specific purposes are highlighted in the law as particular types of uses which are strong examples of fair use, but they are by no means the only types of uses which are considered "fair use." Whether something qualifies as fair use typically depends on a case-by-case judgment of the facts.

Fair use is codified at Section 107 of the Copyright Act, which gives a non-exclusive set of four factors courts will consider in deciding whether a use is fair or not. These factors are:

  1. the purpose and character of the use,
  2. the nature of the copyrighted work,
  3. the amount and substantiality of the portion used, and
  4. the effect of the use on the potential market for or value of the copyrighted work.

ChillingEffects gives a good overview of the four factors, on which my summary below is based (italics indicate quotes from ChillingEffects).


"This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public."

This and factor four are probably the most important parts of the fair use test. The key to this prong of the test is whether the use is (1) commercial or non-commercial, and (2) transformative rather than merely derivative. Non-commercial use of copyrighted material is much more likely to be considered fair use than commercial use, since particularly in video there is an established market for licensing material for commercial use. However, this does not necessarily mean that a commercial use cannot be fair use, but the burden of proof will be higher.

The most important part of this prong is whether the new use is transformative, which means that it must somehow alter the original work either quantitatively or qualitatively. "The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair." Even if a use does not necessarily alter the original in substance, if it does something to add a new meaning or message to it, it is still likely to be considered transformative.


"The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright--only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair."

This is probably the least important part of the fair use test, and rarely makes the difference between a use being considered fair or not. Basically if your use of copyrighted material involves facts rather than creative works like movies or music, and if it involves published material rather than unpublished material, it is slightly more likely to be considered fair use. Note: Since the original creation of the Fair Use Doctrine, Congress has amended it to explicitly say, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."


"In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair."

This prong is closely related to whether your use is transformative or not, and is also very important. The key here is that in order to be fair use, you must use no more of the original copyrighted work than necessary for your purpose. Incorporating small amounts of copyrighted material into a larger presentation is much more likely to be considered fair use than something that makes use of the entire original. This prong not only looks at how much of the original you used quantitatively, but also qualitatively, and a use is less likely to be fair use if you used "the heart" of the original work.

However, even if you do use the entire original work, this prong can be outweighed by the first prong if your use is sufficiently transformative. A good example of this would be anime music videos and film mashups, which in my opinion qualify as fair use for the video portion because quantitatively they only use brief clips of much larger works, and for the music portion because even though they use entire copyrighted songs, the addition of the video footage qualitatively imparts a new message and is sufficiently transformative to outweigh the fact that the entire song is used.


"This factor is generally held to be the most important factor. This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists.

This factor is key to the whole analysis, and considers whether the new use of copyrighted content directly competes with the original work. To decide this, ask yourself if your use of copyright content would be likely to serve as a substitute for the original. In the context of online video, could someone watch your video instead of buying the original work and still obtain the same value as from the original? If the answer to that question is yes, your video is likely not fair use. If it is no, that weighs significantly in favor of your video being considered fair use.

ChillingEffects also notes: The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. ... It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use." This means that in the context of a lawsuit, the copyright holder would have the burden to prove that your use does harm their market. This market harm must be shown to come from direct competition between your work and the original. It is not enough to say that your use criticizes the original and might make someone not want to buy it. That is still fair use.

Deciding if your video is fair use

On YouTube, they key things to consider is if your video is transformative (i.e. you modified the source material in some way or did something to give it a different meaning or message), whether it is noncommercial (you aren't making money from it), and whether it competes with the market for the original work (i.e. someone could watch your video and get the same benefit as buying it). The Center for Social Media publishes an excellent Code of Best Practices in Fair Use for Online Video, which lists the following six uses as being probable fair use:

  1. Commenting on or critiquing of copyrighted material
  2. Using copyright material for illustration or example
  3. Capturing copyrighted material incidentally or accidentally
  4. Reproducing, reposting, or quoting in order to memorialize, preserve, or rescue an experience, an event, or a cultural phenomenon 
  5. Copying, reposting, and recirculating a work or part of a work for purposes of launching a discussion
  6. Quoting in order to recombine elements to make a new work that depends for its meaning on (often unlikely) relationships between the elements

In addition to these things, here is a list of common types of videos on YouTube which in my personal opinion would likely be considered fair use (or at least should be under common sense logic and current online practice). Ultimately, though, it would depend on what arguments a court would be willing to accept, and the case for some is stronger than others.

  1. Anime music videos and film mashups
    • The video portion of such videos is very likely fair use as they only use small, highly edited portions of the original video footage. The audio portion is less likely to be fair use as these videos typically use an entire song, yet is still arguably fair use because of the non-commercial, transformative use of the song, low probability of harm to the market for the original song, and the impossibility of the average amateur video creator to license the song.
  2. Parody videos (such as a political parody using satirical lyrics set to a copyrighted song)
    • Note that courts have drawn a distinction between parody (which comments on the original work) and satire (which comments on an unrelated subject), and have held that parody is more likely to be fair use. However many satires are still likely to be fair use based on their non-commercial, transformative nature, low possibility of harming the market for the original, and impossibility of licensing. Political parodies/satires are also likely to be protected against copyright claims by the higher first-amendment protection traditionally granted to political speech.
  3. Filming yourself singing a copyrighted song (lip-sync videos may be less likely to be fair use)
    • This is questionably fair use since normally professional recording artists who perform cover recordings would be required to obtain a compulsory license and pay a fee set by statute to a performing rights organization in order to make a cover, and obtain a syncronization license from the record lable to use it in any kind of video production. However, at least in my opinion, it is doubtful this requirement was meant to apply to amateur performers like teenagers singing copyrighted songs in their bedrooms, and such people arguably could not be expected to navigate the complexities of the licensing process, which would be incomprehensible to the average person simply seeking to post a video of themselves singing a song on YouTube. Accordingly, I think a valid case could be made for fair use.
  4. Movie reviews containing clips of copyrighted films
    • This counts as commentary and criticism of the original film and is very likely fair use.
  5. Video game walkthroughs and tutorials with commentary
    • Even though video games are copyrighted, it is now a widely accepted practice on YouTube to post walkthroughs and tutorials ("let's plays"). Both the player's original commentary and the fact that their gameplay creates a unique subjective experience with the game make the use transformative. As long as you include your own original commentary about the game and don't just post straight raw footage from the game, it is likely fair use. It is possible that even un-commented gameplay is still fair use, though this is less certain.
  6. Posting short news clips in order to comment on a current event
    • This also falls under the commentary category of fair use, though there likely would need to be some original comment on the clip rather than just posting the straight unedited clip.
  7. Non-commercial podcasts and V-logs containing brief uses of copyrighted songs (especially for purposes of comment about the song)
    • This is likely fair use because of the minimal nature of the use and non-commercial aspect. If the podcast or V-log is for profit it is less likely to be fair use.
  8. Home videos or documentary-type videos which capture copyrighted material in the background, such as a TV show playing on a TV or a song playing on the radio
    • When copyrighted material is incidentally captured in the background of a video (for example, a baby dancing to a Prince song as in the case Lenz v. Universal ) courts have held it to be fair use. This would also include things like home recordings of a school talent show or dance performance that happen to include performances of copyright songs.

Videos that are NOT likely to be fair use include:

  1. Posting unedited clips from movies and TV shows
  2. Posting professionally produced music videos in their entirety
  3. Using copyrighted music in the soundtrack to a commercial or some type of video which you stand to gain financial benefit from, which would likely infringe on the artist's synchronization right.
  4. Posting so-called "lyrics videos"
    • If your video is merely a copyrighted song with the text of the lyrics on the screen and maybe a few pictures of the artist or the album cover, this is likely not transformative enough to be considered fair use, since you are not really adding anything new or changing the message of the original. These are also much more likely to serve as a substitute for the original, defeating a claim of fair use.

These things are only examples and are by no means a complete list of types of videos that may or may not be fair use. The most important thing to keep in mind is whether your video is (1) non-commercial, (2) changes or alters the original work in some way, (3) uses no more of the work than necessary for your purpose and (4) does not harm the market or substitute for the original work. With the last of these, it is important to keep in mind that even if you used an entire song to make an anime music video or film mashup for example, your video could actually have a positive effect on the market for the original song by serving as free advertising and motivating people to go out and buy the song.

Finally note that making money from a video does not necessarily preclude fair use, but it does reduce the chances of a video being found to be fair use. If the copyrighted material is highly factual and you are using it for news reporting or commentary, it may still be fair use to use it commercially, but a mashup that you make money from might not be. YouTube also has stricter rules for videos it allows to be monetized and generally requires you to prove that you have a license for the material, so claiming fair use may not be enough to satisfy YouTube that you have the right to use it.

Last Updated on Thursday, 01 November 2012 13:42



+39 #1 Trevor 2011-07-22 03:57
Seriously, great article. Thanks for posting!

You should have a Facebook Like button on your pages so people can share this terrific fair use insight. I can't believe I'm the only commenter so far.
-9 #2 Agent_Duk 2011-08-31 16:23
Fantastic article, I would like to know however, if it is fair use for me to use a song in a lyrics video that I create myself. I can also slightly alter the song so that it is not quite as good as buying the song so that it does not compete with the actual song.
0 #3 Patrick McKay 2011-09-12 11:45
Lyrics videos that just show the lyrics as the song plays are probably not transformative enough to qualify as fair use, since they don't really change anything or add new meaning or message. Slight alterations to the song also probably would not be enough.
+2 #4 Troy nall 2012-03-04 08:10
Do you think if I use sound clips of famous "star trek" sayings in my comedy routine could be considered fair use? Example, I would be holding a conversation with a member of the audience and the sound clip would answer the audience's response. Like the way spock would say "fascinating" or "highly improbable" to someone.

Of course I release you from any legal obligation and realize your not a substitute for legal counsel.
-1 #5 Patrick McKay 2012-03-04 10:31
Very brief use of clips and sounds would usually fall under fair use, or possibly de minimus use, which means it's just too short to be considered infringing. I can't comment on your particular plans though.
-2 #6 Kyle Montgomery 2012-03-18 17:46
I'm guessing it would be but do you think that a small 10-15 second clip from a song being used for my own lip syncing animation practice would be considered fair use?
-1 #7 Patrick McKay 2012-03-18 17:49
Yes, using a short clip of a song for transformative purposes such as lip syncing would typically be fair use.
-3 #8 Stylo 2012-03-21 08:33
Thank you for this article, very informative.

Not to want to sound stupid here but I am planning on producing a critical video on Nationalism and the BNP.

If I were to include brief clips of the BNP party leader and BNP rallies from news programmes and Question Time whilst talking about him, intercut with clips of myself presenting - this would fall under illustrating my point and therefore, fair use, yes?
-1 #9 Percy von Lipinski 2012-03-27 21:59
I produce CNN web news reports, some of which go to broadcast but do not get paid for them. I recently covered a special assignment on the 100th anniversary of the sinking of the titanic. I had my 8 year old daughter sing the theme song to open the story and roll the credits using a cheesy karaoke backing track. Would this be fair use?
-1 #10 Patrick McKay 2012-03-28 16:10

That's kind of a gray area, but when a "cover recording" is closely related to the story and done as a parody, and it's also amateur and non-commercial, that is likely fair use.
+1 #11 Ethan Polson 2012-04-24 23:26
I have a youtube video which is a tutorial that is 6 minutes 22 seconds long, i have two clips of music, each lasting less than 30 seconds, one as background music for intro, and second as background music for a visual review of what was being taught.
Is this fair use if i wanted to "monetize" this video for potential profit, since the uses were not significant to the work, which was the tutorial?
-3 #12 Adam 2012-04-25 12:20
Great article. I think my situation fits under fair use as I understand it from you article, but I would like to hear your understanding of my situation. I was hoping to use a chunk of a song in a presentation for work where I have changed the lyrics but kept the melody.

Based on your 4 qualifications at the end--(1)it is for internal use only and will not be posted anywhere (either internally or externally), (2) I changed the lyrics, (3) I did not use the whole song, and (4) I can't see how it harms the market for the original work in any way (especially as it is only for internal viewing).
+1 #13 Patrick McKay 2012-04-26 00:28
Ethan--That's tricky, since once you start making money it substantially reduces your chances of it being found to be fair use. Most commercial uses of music--even small amounts--are expected to be licensed. YouTube also has it's own rules for monetization, and I've heard you have to provide them with a license for every piece of material and they don't even allow you to claim fair use. So that might not be eligible for monetization regardless, though I'm not sure.

Adam--Changing the lyrics of a song counts as transformative, and personal, non-public use is much more likely to be fair use than publicly distributing it. I can't give you a straight up opinion because that would be legal advice, but I hope that helps.
-3 #14 Jon 2012-05-20 02:33
A quick question, I am a DJ and I posted a remix/mashup I made of two songs, one from WMG. I basically start with my own beat then use a good minute and a half of the song that is copyrighted and transition into one that isn't being blocked. I'm pretty sure I can dispute for fair use but I want to make sure.

Great article and thanks,

-1 #15 Patrick McKay 2012-05-20 19:36
John - Theoretically that should be fair use, but there have been some really screwy court rulings that have basically said fair use doesn't apply to music remixes and sampling, and that even the smallest uses of music in another song must be licensed. It's totally contrary to the theory of fair use, but it's the way courts have ruled. Basically the current state of the law is that there is no such thing as fair use when it comes to sampling and remix, at least when it comes to selling sampled music. On YouTube you can always say it's fair use, but if it's blocked they may reject your dispute anyway, and sadly remixing or sampling would probably not be found to be fair use by a court.
-3 #16 Stewart Johnson 2012-05-26 03:47
Im making a Documentary and In some clips Im using photographs of famous people that I want to be like.

Is this fair use?
-1 #17 Patrick McKay 2012-05-27 15:22
@ Stewart - Possibly, or possibly not. Depends on how prominent the use is, whether you're making the documentary non-commercially or for profit, etc. I can't give you a firm opinion either way, so you'll just have to decide for yourself based on what you know.
-3 #18 Winter 2012-06-04 07:26
What about videos like speedpaints, where you record your screen while you draw something
-1 #19 Gilles 2012-06-05 12:00
I recorded my daughter skating her solo routine during a skating competition. She is skating on a soundtrack which is copyrighted material, and this soundtrack was recorded on the video. Do you think this can be considered fair use?
Thanks in advance,
-3 #20 Patrick McKay 2012-06-05 12:08
@ Winter - If the music isn't really part of the message of the video but is just background filler, it is less likely to be fair use.

@ Gilles - Recording something in a real-world environment where music is playing in the background and is unavoidably captured is called "incidental use," and it is usually considered fair use.
+1 #21 Brandyn 2012-06-11 20:49
If I made a film with copyrighted music (but not blocked by WMG) and posted it to youtube but did not make any profit off it at all, would that be considered fair use? Please don't comment on my desire to use other people's music as opposed to creating my own score, just let me know if there is a risk involved or if that is safe. I would honestly think since I am not profiting and youtube didn't block it then it should be fine but I could be wrong
-3 #22 Patrick McKay 2012-06-11 20:57
Most non-commercial uses of music on YouTube are probably fair use, but it's impossible to say for sure. It's really up to you to decide if your video is fair use or not and whether it's worth it to you to dispute blocks on it.
-1 #23 Rich 2012-06-12 07:23
Thank you for the very informative article.

I have one pressing question though. I recently had a child and have created a video featuring her learning to hold her head up, roll over, and such. Since 2.5 minutes of baby gurgle and my wife and I saying "come on you can do it" isn't exactly thrilling, I inserted the rocky theme song, so it looks like she's "baby training". Now I've seen dozens of videos like this on YouTube, but when I tried to upload it to Facebook, I got flagged for copyrighted material.

I would think this would fall under fair use, as I'm only sharing it with 100 people, I own the song legally, and Im not profiting. They ask me to file a counter something to post the video. Would this qualify as fair use, and because I filed the counter am I now at risk of being sued for a family video?
-3 #24 Patrick McKay 2012-06-12 08:54
I can't really give you an actual opinion, but fair use works the same on Facebook as it does on YouTube. If your video is noncommercial, for largely private purposes, makes a transformative use of the content (puts it to some new use) and doesn't harm the market for the original it's fair use. Facebook has a similar automated filter system to YouTube and a similar dispute mechanism. Once you file a dispute there, your video should be immediately restored.
-2 #25 Rich 2012-06-12 09:07
Tyvm, yes the video was restored, and meets all the criteria you listed. I was worried that I had to file a dispute. Guess its just the automated system.

Thanks again
-6 #26 Joel Lopez 2012-06-14 22:17
Hello i have a question, i had a claim today for using a copyrighted song, it told me my video was still going to be available, that there will be adds now. Yes the video did contain a song, and it was a video of my school fist pumping to the song, at one point we lip sync and really sang the song, (a few lines of the song). In the describtion i did mention that it was another side of education and how you can have fun in school. i also put a link to the song for iTunes, so that way people can buy the song. i even wrote the fair use.

My question is, will be video be taken down even tho i promoted people to buy the song in the description? in that case will it be taken down at all?
-4 #27 Patrick McKay 2012-06-16 18:41
If it's still available but with ads, then it probably won't be taken down. If it is actually blocked, you can always dispute it as fair use if you think it qualifies.
+1 #28 Sam 2012-06-30 17:08
I am planning to have a video blog, can I use like 10 secs video clips from cnn, fox news etc., the way Jon Stewart from Daily Show uses and make a video blog based on that. So a 15 minute video blog will have 5-8 clips from cnn or fox news and then I will do a commentary for the remaining time on them
-2 #29 Patrick McKay 2012-06-30 17:24
Something like that would probably be fair use, as long as you are commenting on the news clips. TV news shows like the Daily Show actually usually rely on fair use themselves to show other network's clips.
-1 #30 Mary G. 2012-07-17 22:17
I am trying to decide whether uploading videos of my kid singing arranged songs in choir or playing songs arranged for marching band is abusing copyrights or not. None have been removed, but one is flagged for matching third party content.
-3 #31 Patrick McKay 2012-07-19 01:45
It's usually only really worth it to dispute if the video is actually being blocked. But normally home videos of your kid singing in a choir or performing in a talent show or something would likely be fair use.
+1 #32 Johnny Gray 2012-07-19 04:40
I took some old movies at Woodstock! Nearly 50 years ago. I copyrighted these and have been selling videos of them for a few years. Suddenly this is on YouTube. I didn't upload it. I didn't even have it in a form in which someone could upload it! So I filed a copyright case with YouTube and the other party responded "I swear, under penalty of perjury, that I have a good faith belief the material was removed due to a mistake or misidentificati on of the material to be removed or disabled."
I know my footage. I filed the papers. I own the copyright. Now YouTube responded to me that if I don't file in court against the bootlegger, and notify YouTube I am doing this, they will put my old film up again which basically is an end to my side business. Do you suppose if I supply YouTube with a copy of my original copyright they will be more serious in their take-down? What gets their attention? Is the little guy in filmmaking, now essentially "dead." And alas, how do I file in court, and how much does this cost? (I guess this will determine if the little guy IS dead?) Cheers!
-2 #33 Patrick McKay 2012-07-19 10:29

YouTube is correct about the way the law works. If you sent a DMCA takedown notice and the person responded with a counter-notice, YouTube must put the video back up unless you actually file a lawsuit against the uploader seeking an injunction and send YouTube notice to that effect. Otherwise the video stays up. Sending YouTube your copyright registration won't do anything. It may seem unfair, but it works that way in order to protect free speech and ensure that speech isn't permanently suppressed without a court decision saying that it's illegal.

If it is that important to you that the video be taken down, I recommend you consult a lawyer. You might also want to consider hard if the person who uploaded it might have a viable fair use claim. Hope that helps.
-3 #34 Johnny Gray 2012-07-22 05:29
Thank you Johnny. It is my feeling that the DMCA may not even apply to this work. I was worried about this kind of thing happening back when I first released it. But back then I felt better after I remember reading somewhere way back then if the original owner never uploaded it anywhere, that another party uploading it without the owner's permission violates the owner's exclusive right to digitize it for web transmission. I thought this exempted my work from this law forcing me to take action YouTube wants me to. You see, they didn't just steal it from me on the web, but they bought a physical copy of it, digitized it and then uploaded it. The work qualifies as a piece which has never been uploaded to the web in the first place. I can't find this reference in the law, but I do remember reading it because I remember freaking out back 10 years ago when I thought someone might attempt to do what they did.

Other Points: At one place, I appear in the movie. I do a talking scene. So I appear in the film, and the film is run in its entirety without cutting. I mean they just lifted the entire piece. No editing, no nothing. Just plain old "rip off." Does YouTube have any other rules about conveying people's images without their permission? In addition, all copyrights have been removed from the piece which was uploaded. Isn't that a no-no in itself?

I (we all) do appreciate your knowledgeable comments. Thank you!
-3 #35 Johnny Gray 2012-07-22 05:31
Excuse me, I didn't proof it. Thank you Mr. McKay.
-3 #36 Johnny Gray 2012-07-22 05:39
Mr. McKay--this brings up another Q: If I were to file in court, can anyone else just upload it and force me to file another court action? (In other words, what if the guy just uploads it with a girlfriend's or a fake account?-jg
-3 #37 Patrick McKay 2012-07-22 11:30

You are correct that as the creator of the video you have a copyright in it and that copyright protects your work in any format someone might put it in, including converting it to digital. But the way copyright law works is the burden is on you to prove it is infringing. The DMCA is a quick way to get content taken down, but if the uploader replies with a counter notice that they believe they are not infringing your copyright, even if they are wrong, then you have to sue them to get it taken down. And yes that applies every time someone uploads your work. Welcome to the world of trying to enforce copyright on the internet--otherwise known as the world's biggest whack-a-mole game (though if you did get a court judgment, it would apply to the original uploader and anyone acting for him, but not to unrelated third parties).

Have you tried just messaging the uploader directly? Maybe they don't understand that they are infringing your copyright. Or maybe they really aren't. Under certain circumstances, uploading video of a historical event like Woodstock might be fair use. Probably not if they used the whole video, but possibly. If they still refuse, your only real option is to take legal action, and for that you really need to think if it really matters that much to you that the video is on YouTube. Hope that helps.

-1 #38 Johnny Gray 2012-07-22 13:15
Patrick: You are one cool dude. Thanks for cutting to the chase. So there's no such thing as copyright these days unless you're a biggie. That's one way studios have an advantage to keep the little indie small. And with it comes corporate mentality and narrow-mindedness aimed at a broad perspective of people and not to those only interested in an obscure genre. I heard YouTube has some kind of automatic system which does sort duplicate content? Is this true? Kindly, -jg
+1 #39 Patrick McKay 2012-07-22 14:13
Well YouTube does actually have an automated copyright filter called Content ID which will block videos that use your content, but there again you have to be a major content provider to qualify for the program. That does allow you to permanently block content with no court order, though if you read the rest of my site you'll see I think this is a bad thing because of the potential for abuse. You could always try applying for that program, but if you're only trying to go after one infringing video chances are you wouldn't get in.
-2 #40 Johnny Gray 2012-07-22 14:56
Thank you. Your observations are inspirational. I have been screaming fair use about educational material excerpts for years. It's good to see your site organized. I wish you were there 20 years ago! LOL-jg

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