Slashdot Mirror
Viacom Says User Infringed His Own Copyright
Chris Knight writes "I ran for school board where I live this past fall and created some TV commercials including this one with a 'Star Wars' theme. A few months ago VH1 grabbed the commercial from YouTube and featured it in a segment of its show 'Web Junk 2.0.' Neither VH1 or its parent company Viacom told me they were doing this or asked my permission to use it, but I didn't mind it if they did. I thought that Aries Spears's commentary about it was pretty hilarious, so I posted a clip of VH1's segment on YouTube so that I could put it on my blog. I just got an e-mail from YouTube saying that the video has been pulled because Viacom is claiming that I'm violating its copyright. Viacom used my video without permission on their commercial television show, and now says that I am infringing on their copyright for showing the clip of the work that Viacom made in violation of my own copyright!"
You need to sue yourself for everything you're worth. Oh, and can I be your lawyer? I'll work for 30%.
God knows they can afford it ... and bloody hell they deserve it! It'd be poetic justice if they had to pay up.
ISO certified == THX certified
incredible what the media conglomerates think they can get away with! steal content from the little guy then punish him when he steals it back!
He should counterclaim and sue for damages.
How many copies did Viacom sent out to viewers homes?
Isn't it something like $250,000 per copy?
liqbase
Pulled clip is here.
(I have no idea about the legalities, but viacom seems to be at the very least pretty fucking rude here).
There are shills on slashdot. Apparently, I'm one of them.
Most likely they just saw it on youtube and didn't think, and just used it assuming it was free for all because it was on youtube and used it in the show. Then, completely different section of the company found the posting of the show that included your clip on youtube, and got it taken down. Its pretty well know that companise aren't known for joined up thinking. If I were in that position I'd contact them,a sking if you can post it, and if you can't, sue their asses off for copyright violation.
We give the USA the economy not you, therefore we own all intellectual property. Besides. You are incapable original ideas and thought. Everything you have you merely rent from *US*. You cannot produce anything without our consent, so anything you make we already owned to begin with.
-- This is a tounge and cheek Comment.
It's going to be a well-deserved win.
Two wrongs don't make a right.
While Viacom was stupid in this matter, they are techhnically correct (the best kind of correct ;-)). He did infringe Viacom's copyright - they own everything surrounding his clip that was a part of that program.
Now, he could easily countersue Viacom for copyright infringement to the tune of lots of money, but that doesn't mean that Viacom doesn't still own that work they produced around the infringement.
Viacom used his video as part of a report that included commentary on it. That's fair use.
He then used Viacom's derivative work, but, it seems, didn't provide any commentary on the clip you uploaded to YouTube. Instead, he just made a direct copy. That's copyright infringement.
While this is a bizarre situation, it seems they decided to defend their copyrights where you decided not to defend yours.
What's surprising by the outcome?
Your choices...
- Work out a cross-license deal with them (yeah, right, like you'll ever even talk to someone).
- Sue them for copyright infringement (and they'll countersue)
- Forget about it
- Post it on Slashdot where the Viacom hating masses will give you accolades.
I would save my kindness and courtesy for individuals. Big media companies have no problem with exploiting your content and then stabbing you in the back.
Bill Clinton: Pimp we can believe in. - The Shirt!!!
.. and sue them good!
File a lawsuit against them, and see how much you can milk them for.
Get a lawyer, but at a minimum you can claim wrongful harrassment, slander of title, and copyright infringement.Do you like Japanese imports?
I can't examine the legalese on YouTube right now, but does YouTube essentially state that you give up your rights to the content when you post it there? If so, it essentially becomes out in the public domain, whereas there show doesn't.
I don't like it, but the law (and the money) is probably on Viacom's side.
"It is a miracle that curiosity survives formal education." -Albert Einstein
who is prepared to work on a no win no fee basis. A small percentage of a huge pile of money is still a lot of money. If your case is strong lawyers should be salivating over it.
While they're not innocent of infringing the creator's copyright, by posting the show (or a snippet of it) on YouTube then you would legally be infringing their copyright on the show.
Unfortunately that's the difference between people and corporations - people see fair re-use that spreads the material and thinks "cool, I did that and someone else found it", corporations see 'fair re-use' that spreads the material and thinks "Hang on, we own that and anything even remotely connected to it".
The other "unfortunately" is that they have far more money to throw at lawyers, so even if you hadn't been so kind as to not complain when they first used it then you still might not end up in a reasonable position.
Sue them in some outrageous way. Then you'll get on their next "20 wackiest lawsuits" show. Then take a clip of that, and put it up on youtube. See if they sue you again.
I clicked on the first link and You Tube is still dishing out the video as of 8/30/2007 8:50 AM. So they they have not issued a take down notice to You Tube. What does it mean? Why? Is it possible that, they tried to issue a "take down" notice and You Tube is showing some rudimentary back bone and is asking Viacomm to substantiate the claim?
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
Copyright, as it exists today, isn't to protect content creators. Few music and graphic artists actually keep copyright to their works, instead losing them as works-for-hire. Copyright exists soley to monetize "content." You were not monetizing it, and that's probably why Viacom stepped in to claim copyright.
To sound preachy for a minute, this is the capitalist version of nationalization. Seriously, I'm currently working with a major content company (Time Warner), and that's the way they treat content. Look at their remote DVR. They feel they can make money by violating the copyright of many, many content creators. Many in operations and senior management feel that if it's not being monetized, then it should be yours.
So, your problem was that you weren't making sufficient money, and that you weren't sufficiently powerful to protect yourself. Get yourself a good lawyer and prove them wrong.
.. and go after them for copyright violation. Unless you specifically put your media under a Creative Commons license or something similar, I think you'd have a fair case for saying they've been using your work in a commercial, for-profit sense - and you should get royalties based on the number of times they've played it.
I find it absolutely disgusting - but not at ALL surprising - that big media think they can use the Internet as a source of free content.
Just because the topic poster allows others to use his video doesn't mean he's allowed to use theirs.
Then again; he's never given them a written license, so he might as well claim the implied license was on the condition of him being able to use their work.
Slashdot social media options: AIM, ICQ, Yahoo, Jabber and Mobile Text. Why no MySpace?
I'm just surprised that George Lucas hasn't filed a suit yet! ;-)
America, Home of the Brave.
Microsoft did about the same thing to us at LSI Logic with code we wrote for a custom CPU. They glommed it from our dev kit for the CE support then claimed we were violating their copyright by continuing to distribute that code snippet with our dev kit. Go figure.
"You don't need a weatherman to know which way the wind blows." - Bob Dylan
Copyright notices have not been required in the U.S. since 1989.
Maybe George Lucas is pissed somehow too.
boycott slashdot February 10th - 17th check out: altSlashdot.org
The original clip is a campaign commercial. Thus when Viacom played it with commentary, they were not only engaging in artistic speech, but political speech as well. It'd be one thing if they exploited some poor schlump's crappy Star Wars fan film, in this case they're commenting on the schlump's crappy Star Wars political message.
Political messages are usually intended to be repeated; this guy would have a hard time arguing that he was damaged in any economic way. He may be politically damaged, but being mocked for your political message is part of being in politics. It would do tremendous damage if politicians could use copyright to control how their political speech is reproduced.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
As far as I'm concerned, the clip incorporates the original ad into a new derivative work, with the voice and video-overs. As such, it is *not* fair use of the original ad, and is *is* copyrightable in its own right. But the copyright holder in the original ad has a substantial stake in that copyright.
Right or wrong, my theory is irrelevant, because few individuals have the resources to do battle with corporations over copyright.
but I think if this were to go to court, Knight would probably be awarded some money. VH1's use was obvious infringement. I'm sure they figured they could get away with it because the authors of the "web junk" they were using without permission would find it flattering, which was probably true, but doesn't change the fact that it was clearly for-profit, commercial infringement. The VH1 clip was a derived work, including both Knight and VH1 material (Spears' commentary), so Knight should, ideally, have gotten permission from VH1 to publish it.
However, I think Knight's use of the VH1 clip can be considered fair use. The law specifies that judges consider the following factors when determining Fair Use:
Knight's use of the VH1 clip was clearly non-profit and arguably for educational purposes -- commentary and review, to be precise. He also used only a very small clip out of the VH1 program, and it's clear that his clip has negligible effect on the value of the program as a whole. People aren't going to stop watching the show just because they can get one clip of one program on-line.
Aside from that, I'd hope the judge would at least consider turnabout to be fair play, but I really think that what he should do is award Knight a portion of the VH1 program's revenues to compensate him for VH1's commercial use of his material, and to remind VH1 that they are not allowed to infringe others' copyrights.
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
ow, my brain.
I'm not implying it's legal. I'm saying at least one big content company views copyright that way.
If you or I were to show a large chunk/all of a Viacom TV show with our own commentary, you can beat your sweet ass we would be sued if we didn't get permission first. But, if Viacom could show and mock our home-rolled 5-minute youTube video for their latest "Web's Dumbest Geeks" episode, they certainly would without our permission.
Viacom certainly doesn't care about copyright. Viacom cares about protecting their revenues. If copyright can help them do that they'll use it. If it gets in their way, they'll certainly ignore it. And if they can selectively interpret fair use (we can use a full copyrighted work of yours with commentary, but you can't do it to us), they certainly will.
Have you wrecked your own case by publicly stating "I didn't mind it if they did"?
Ummm...lemme think....I know. Both of you. First the guy who called you a moron when he obviously does not understand copyright law. Second, you....for arguing with a moron.
P.S. I'm a moron too. We're all morons on this bus.
The fact that it was a political commercial probably gives Viacom even extra fair use. Political messages are particularly fair game at being copied and analyzed.
Once you posted it to youtube, you gave them permission to reuse.
---- Booth was a patriot ----
The commentary on your clip renders their use of it fair use. You have no actionable claim against them.
Your redistribution of that commentary is a mere copy; you are infringing on their copyright.
I would say that his commentary is the original and theirs was the commentary of his commercial. His showing it can be construed as posting a rebuttal or comment on his own work.
Has the ultimate originator of the work His only commentary needed was to say something like 'hey look who used my commercial' That would have satisfied the fair use, even if only has title to the clip. His Content was part of the clip. Before or after it's manufacture is fairly moot. Viacom's use was also fair use.
Likely they had some junior birdman lawyer who should have poured himself a large steaming cup of STFU and not bothered. Viacom pays no attention to who they send notices about. They've sent notices on stuff they don't own before.
If I had post it not being party to the original clip or the commentary then they would have grounds. But then I didn't. However I now can as I have commented on it and can repost my comment and the clips in context. Because thats Journalism. For further details note Slashdot's comment on user comments and my own URL. (BTW, I am not going to repost this)
Sorry about the writing. Robot fingers, you know? Cliff Steele in DOOM PATROL #23
Feeling "damaged" or "mocked" by this hasn't even entered into my mind, until you suggested the notion. Look, I was *delighted* that VH1 chose to use this! Some friends called our house one Sunday morning last month to tell us that VH1 was running this on Web Junk and that the show was coming on again. We were about to head off for church but decided to stick around and check it out. I was literally in the floor laughing at how they used it, especially Spears' comment about how "he won't be bangin' the teachers!" Hilarious stuff. I just want to be able to post this to YouTube so that others can see how far this ad went. I definitely DIDN'T think that it would wind up going so far beyond the local level. Certainly never thought it would be shown on VH1. I'm rather proud of that. Speaking of which: there were sixteen candidates running for five seats. EVERYONE was doing something crazy it seems to try to get elected! There were some other candidates running wacky TV commercials too. Before it was over with our lil' school board race had been written about in The New York Times, most of the big newspapers in the state and had received some other TV coverage as well. By every measure, the campaign season for this was as clean and vibrant and fun to behold as politics should be.
I don't think that someone pretending to use a "light saber" is infringing copyright. Mattel sells light sabers as toys, for example. You can use a toy you bought in your own video. "Light Sabers" and loosely imitating those movie characters has become part of the public domain.
As was mentioned below, the pulled clip is here: Chris Knight's material used by Viacom for profit.
Silly kid, copyrights are for big companies!
This is one of my five reasons for being against intellectual property. They tend to only benefit the big and strong - not the little guy.
There seem to be at least three works at issue here, and none of them suggest that Viacom accused kdawson of infringing a copyright held by kdawson.
Work #1: Star Wars. This is an original work (although its origins can be traced to several other works).
Work #2: The Star Wars-themed commercial produced by kdawson. This might be a derivative work of Star Wars, or it might be an original work. Since George Lucas is not involved here, who cares? Viacom cannot argue that because kdawson's work might infringe on the works of George Lucas that Viacom has the right to use kdawson's work.
Work #3: The Viacom produced VH-1 segment featuring the Star Wars-themed commercial and commentary on that commercial. Sure, kdawson could sue for Viacom's use of the Star Wars-themed commercial without permission. That does not mean that Viacom can't protect the copyright in the commentary it produced. Viacom did not produce Star Wars-themed commercials that were derived from the Star Wars-themed commercials kdawson produced. Viacom created a compilation of the Star Wars-themed commercials kdawson produced and original commentary.
For example, if Robert Ebert reviews a movie and takes a few quotes from it, his commentary is still his. The movie producers do not have the rights to use that commentary (except, most likely, minimal non-infringing quotes).
If kdawson is not happy with Viacom's efforts to keep its commentary off of YouTube, then kdawson can a) sue Viacom for infringement of kdawson's work to pressure Viacom to be a bit less tight-fisted with its copyrights or b) send a counter-notice to YouTube to put-back the Viacom clip, then prepare for a defense if Viacom decides to sue for infringement by posting the Viacom-produced commentary.
The court of Slashdot, while a fun place to vent, is unlikely to have much effect. An appeal to change public policy to prevent users from being accused of infringing their own copyrights only makes sense if that is what is happening. That does not seem to be the case here.
... but the "bad people" of the corporation are right at this one. They took his video, edited it significantly and made comments on it. Their work is NOT a copy of the original video, it is new work. What the poster could have done is to take the aired video and edited and added content so that it was derivative work and not a copy and all would have been within the fair use. Sure, the bad guys are being nasty but the law in this case is clearly on their side.
While I, too, am indignant, I'll point out only that accusations of online copyright infringement are almost always done semiautomatically, with a very broad brush, very unreliably, and with very little recourse. Without wanting to be sympathetic to the jerks who do it, most of these sites handle far too many items and have far too small a staff for each item to have any human intelligence applied to it. And the number of items that are unfairly pulled and accounts unfairly cancelled is too large for the sites to review them in any timely or intelligent or sympathetic way.
I'm not sure if it's still true, but at one point the eBay selling community warned people never to include terms like "CD-R" in an item description, because eBay automatically searched for such terms and automatically cancelled such auctions. The intention of course was to deal with people selling home-made copies of things on CD-R media, but it also caught obviously-innocent items ("TEAC Home Audio CD-R Recorder" would be a hypothetical example).
When I bought my Rocket eBook device, one of the selling points was an online site called the RocketLibrary which contained a wealth of material in Rocket format. Virtually all of it was personally created by site users or was conversions of public domain material, e.g. Project Gutenberg texts, to Rocket format. But eventually they shut down the entire site... even though the sales material mentioned the site was one of the reasons to own a Rocket eBook... claiming copyright violation. The actual copyright violations probably amounted to much less than 1% of the items on the site.
For a long time I used AudioGalaxy. Most of the things I downloaded from it were simply not available commercially (unless you are better at searching the iTunes store than I am and know where to find "My Reverie" as sung by Bea Wain), and many were in the public domain (1920s acoustic recordings of Vesta Victoria singing English music hall songs). Suddenly one day... a few months before the site folded, searches for this material would bring up a notice saying, specifically, that it had been removed because it was in violation of copyright. Of course I emailed them, explaining why the specific items I wanted to download were not under copyright, and of course I didn't even receive the courtesy of a reply. I surmise that what happened was that the music publishers provided AudioGalaxy with a list of material that had been properly licensed, and AudioGalaxy had taken it upon itself to claim that everything else was infringing, without spending ten seconds' due diligence.
And of course the Terms of Service on such services always say, basically, they can do whatever they feel like, remove any items they don't like, and cancel any accounts they feel like cancelling.
It upsets me, too, but railing against the stupidity of individual cases is probably a waste of indignation.
"How to Do Nothing," kids activities, back in print!
triplederivative -- jerks!
Dont worry, the nice guy at the Pirate Bay have a video sharing site like YouTube in the works. Needless to say they wont be acknowledging any of Viacoms letters to take down.
Did you win the school board election? I thought your commercial was clear regarding your platform.
The fact that Viacom MADE MONEY from the use of the clip is a strong indicator that it was not Fair Use.
As you noted above, it is one of many indicators. Also, the amount of money Viacom made from showing the clip is not easily discernable, at least without discovery. If fair use analysis were confined to whether a party made money by use of a certain sample of creative work, we wouldn't have any critics (in the Noam Chomsky sense of the word, or in the Roger Ebert sense of the word, for that matter).Read the EFF's Fair Use FAQ
If Vh1 has an agreement with YouTube to use / show content, there is *no* case...
By uploading to YouTube, you give them the right to sublicense.
Viacom is able to pull the clip because of the commentary around it, not the clip itself.
"C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels."
One wishes you could give Troll, RTFL (read the f-ing license) mods to an article submission.
In the near corner: Individual video producer with no resources beyond his own two hands.
Round 1: Viacom's content generating machine scoops up scores of independent films and co-opts them for their own profit, skirting the edge of fair use and completely ignoring the little guys.
Round 2: Little guy notices his content in syndication (which is far less surprising than syndication picking up his content in the first place), gets amused and puts up a clip of his clip - but falls just a hair's breadth on the other side of fair use.
Round 3: Viacom's automated system for copyright defense correctly identifies their material on YouTube and takes the standard action - no surprises so far.
Round 4: Little guy makes an argument for poor taste on Viacom's part, which is true, but probably worthless in a court of law.
Recommendation of the judges: Add a bit of scathing commentary to the Viacom clip, use it just as fairly as they used the independant material and repost to YouTube. If Viacom continues to engage in this particular controversy, they're sure to come away with a black eye, but don't kid yourself for a minute with thoughts that you can bring the big guys down.
That's the message to Viacom.
...instead of talking out of your ass. Original Post is correct.
VH1 probably has an agreement with YouTube.
"C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels."
This kind of copyright abuse reminds me of how Disney routinely "steals" from folk stories (in the public domain) like _Snow White_ and _Sleeping Beauty_ to make movies, then copyrights them, and prevents anyone else from retelling our own stories. Stories that the public has created most of the value in, subsidizing Disney and reducing their risk that the product will fail.
--
make install -not war
Is it just me or "infringing your own copyright" sound like a euphemism for masturbation?
I freely admit I have no clue, but I do have a question re this topic that one of you copyright gurus may be able to answer...
So I understand that it's likely that Viacom had no right to use the video without permission (my understanding is that YouTube may only sublicence for marketing purposes, under which description the TV show is unlikely to be classified). Thus they do not hold copyright privileges for the piece of video in question as they have not obtained said rights from the copyright owner (e.g. me rebroadcasting Star Wars without permission does not mean I can sue people who henceforth copy it from me).
Under US "Fair Use" policy, quoting the odd line of text et cetera as an "illustration" of a point / piece of journalism or whatever is acceptable. However utilising large portions of the media in question, such as a putting your own commentary on Star Wars and reselling is unacceptable.
Hence the point I'm vaguely ambling around is;
If the show was a news channel and displayed a small clip of the video in question with a commentary, this would constitute fair use and Viacom would gain copyright on the segment. If a large enough clip was used so that viewing the original became unnecessary, simply putting your own commentary on it does not make you the copyright owner.
Indeed, how can you establish point of copyright on a piece of media that you have obtained illegally?
The DMCA has little-used put-back procedures for fighting false claims of copyright infringement. It's kind of like saying, "Put up or shut up" to the alleged infringee. They either have to sue you within two weeks, or the material has to be returned to the network.
D 132
See: http://www.chillingeffects.org/dmca512/faq.cgi#QI
(I'm not a lawyer yet. This isn't legal advice.)
I'm a lawyer, but not yours. I wouldn't represent someone who thinks taking legal advice from Slashdot is a good idea.
2 wrongs don't make a right. Maybe you should have a lawyer contact Viacom?
They used your work to make money, they owe you.
The Kruger Dunning explains most post on
How's that, exactly? Posting on-line does not release material into the public domain, however much legally naive individuals and legally unscrupulous corporations might like to believe otherwise.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
That really sucks. Viacom should have asked you before using the clip in the first place.
That's just Money, in any country, any language, any politician
...before you open your mouth.
"C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels."
As I understand it, they're likely right. Insofar as their work is a new work they, as its creator, own the copyright. If you were posting just your original work, this wouldn't be an issue.
The question of whether their creation of that work violated your copyright, or is a fair use for commentary, is another issue. You could try to go to Viacom and offer to not go after them for it if they let you post the clip, but the success of that rather depends on your ability to credibly threaten effective legal and PR action.
I think the biggest point here has been missed. The Author retains the rights to his work when he puts it on YouTube. But he also gave YouTube a license to use any works he posted on the site to promote themselves in any media format they want. I'm sure VH1 had YouTube's consent to do the segment (because it promotes YouTube). So the author should not be surprised how his work was used. Check it out it's Section 6B and 6C in the Youtube terms of service
http://www.youtube.com/t/terms
and spell check them good.
Agree with your post except for this film.
Porno knockoffs of Star Wars have been going on a long time. Although, I doubt anyone could really say they "ripped off" Star Wars, the similarities are uncanny.
Or at least that's what my friends tell me after watching it. (cough, cough)
Two wrong don't make a right.
He should sue viacom.
...and that is all I have to say about that.
http://jessta.id.au
A lot of people have said that this really was one of the more historic elections in county history, given how many people ran and all the crazy things that the various candidates were doing to try to get elected (I was far from the only one who ran offbeat TV commercials BTW :-)
I didn't win a seat, but this really was one of the best and most amazing experiences of my life. I learned a lot from this, and strived to chronicle it all on my blog during the campaign. I'm really hoping that others might read about what I went through as a candidate and feel led/inspired to run for office too, wherever they might live.
I haven't had a moment's regret about not winning a seat. This whole thing was too much darned fun! And having a TV commercial that got so much attention - when I never thought it'd have more than local appeal - was definitely part of it :-)
No, IANAL, but from the YouTube Terms of service (point 6C):
"For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels."
Basically when uploading you give youtube a transferrable license to display and distribute your work. Viacom's segment showing this work, however, did not come with any license to distribute. So if YouTube gave Viacom permission to use the content, Viacom had the right to do so, but the original author had no right to use the Viacom segment, except maybe as 'fair use' citation.
But Youtubes terms also include:
"You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service."
This seems a bit ambiguous to me, but could mean that any user of YouTube are allowed to redistribute the content.
And I'm not out to "win a lawsuit". I just want the right to use material that originated with me, and I've *never* thought of asking Viacom to pay me to use this ad like this. I think it's great that VH1 found it funny enough to use on their show.
You would think that Viacom would be glad that as the guy who's being poked fun at by them, that I'm not minding that. That they would let me show that off even.
Back in school, my bus was so short, it drove Backwards!
I'm surprised to see it appears that no one has mentioned the EFF. They regularly deal with issues such as these.
I'm not sure which way they'd lean on this, but they'd certainly know the answer, and may help out with legal action if there's any to be taken.
Just take Viacom's brief, photocopy it, and everywhere you see your name cross it out and write "Viacom" and vice versa. Initial and date all corrections and then file.
The poster below me is right that official notices are not needed on single author/group works, but they are very important on mixed copyright sites.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
You lose. You call Viacom to complain, they call George Lucas, and then launch their own defense. You now have two, count 'em, two lawsuits on your hands, against high-powered, connected, retainered corporate lawyers, and you're running for public office and that hits your town papers.
Good luck.
Also, if you published their interview material, that is their copyright, so yours is the only likely violation as Viacom is almost certainly "fair-use" defensible as a major media organization showing short clips of the local elections on their show.
You need permission to show their stuff, unless you have a "fair-use" defense of your own, but even if you do have one ready, they can still prosecute (and seek an injunction/take down in the meantime) because "fair-use" is a defense, not a right. You have to prove it in a court.
So applying to Slashdot isn't going to help here. File suit and claim "fair-use" and end the take down. Or, quietly count your blessings and stay clear. I know what I'd do.
Might I add, nice General Crix Madine haircut.
--
Toro
1) Doesn't google/youtube have that clause in its ToS that says it's got a virtually unlimited right to use whatever you post in any way it likes? Does anyone more familiar with it an the relevant law know if that extends to partnerships with other companies, in this case VH1? If so, it sounds like they're in the clear.
2) And isn't the content specific to the show still protected copyrighted material? Some posters are claiming it's not, as a derivative work, but that doesn't sound right. Is every movie review that shows a clip then unprotected? Is every literary analysis that includes excerpts from the relevant literature (kept within the range of fair use) unprotected?
My gut, which admittedly never went to law school, says that VH1's making a bonehead move from a PR standpoint, but that the law's on its side. Sounds like a lawyer jumping the gun.
That's a very good way to put it. And it's far easier for a large company to apologize in dollars than it is for smaller companies and individuals.
Show me where I violated George Lucas's copyright, please.
I was VERY careful not to include elements from the Star Wars movies. Using $2 toys from Wal-Mart and your own homemade lightsaber effects doesn't count. Not to mention that this commercial was not being done to make any money (heck I LOST money if anything).
Viacom's use of the clip was done for commercial purposes. And I've never had any particular problem with that.
I do however have a problem with them telling me that I cannot use a derivative work of my own original material, when I'm not even asking for financial compensation for it (and if you ever saw the original clip on YouTube you would no doubt note that I was VERY explicit about the clip being from VH1 i.e. free advertising for them).
BTW, it might interest you to know that the commercial has been linked from George Lucas's educational website Edutopia.org as a recommended link for educators to visit. That's not necessarily an endorsement of the commercial, but I've always thought it was a niece gesture :-)
While I would like to start with the polite and obligatory INAL, I think it's clear to me (even as a layman, albeit an educated one) that you're pretty much categorically wrong on all counts, except possibly that he should get a lawyer.
Regardless of of the opinion of your Time Warner overlords, the purpose of copyright is to protect and advance the public interest, encouraging creativity in the creation of more works, while finding a reasonable balance to protect the artist's rights (originally for a little more than a decade, but currently, now within their lifetime).
The personal opinions of a bunch of pointy-haired stuffed suits do not supersede copyright law.
In reference to your stated opine about works for hire:
See US Code, Title 17 (Copyrights), Chapter 1 (Subject Matter and Scope of Copyright), Section 101 (Definitions) :
A "work made for hire" is--
In short, a work is not a 'work for hire', and the artist retains copyright of that work, specifically unless an artist is (1) an employee creating a work specifically as part of their employment, (2) creating a work specifically upon commission as part of a collective work (various examples given above), or (3) specifically signs a written instrument (contract) agreeing that their creation is a 'work for hire.
Simply because many artists may choose to do so does not in any way reduce the rights of artists who do not.
There is no legal provision under Title 17 that gives Viacom (or anyone else, for that matter) any rights whatsoever to 'step in and claim copyright' of someone else's work, regardless of whether or not the owner of that work may or may not be 'monetizing' that work. Copyright is retained by the copyright holder. Period. Even insofar as it may be 'fair use' to use a work in the
Just saw your reply about distinguishing between your observation that that's the pointy-hair's views on it, and that you may be fully aware that's not consistent with actual copyright law.
Insofar as you're merely reporting their larcenous views on how they would like it to be, and how they themselves may act, I think we're in complete agreement. :D
I do work for similar overlords myself... :/
Cheers,
_.- thimk! -._
No, I didn't say it's legal. I'm saying that's what they think. The remote DVR system is very, very, very much illegal. They are recording a show at the head-end and rebroadcasting it, starting at the beginning, if you push a button at any time the show is still on.
Comcast was successfully sued over this technology. It is copyright infringement, plain and simple. However, there is a cavalier feeling towards the network's copyrights in regard to broadcasts and timeslots. They figure since they can monetize the remote DVR feature, they should, law be damned.
PS- They aren't my overlords. I've consulted them over the legalities of doing their remote DVR/Start-Over feature. I know it's not legal. But that doesn't stop them.
User's fault. Don't post your content somewhere that big companies take it to make money off of (VH1 ran tv ads turning Web Junk 2.0 I bet). If you post on google/youtube it is your own damn fault. You don't own the content that aired on VH1; so they can pull it down. However, you lost exclusive rights over the content you upload as soon as it gets on their servers. Plus, doesn't the original poster break copyright laws and owes money to someone for using Star Wars music?
Reagrdless of whether YouTube's terms of service will stand up in court (which wouldn't really prove anything anyway), the fact that he probably is infringing on a copyright of work he produced himself illustrates the system is terribly broken. The founding fathers are turning over in their graves at how their "necessary evil" patents and copyrights have been corrupted into hindering progress rather than promoting it. Exactly what they most feared would happen.
You're not wrong, you just misunderstood. And I'm glad you understand copyright issues. If more people did, we would have a more sane and just copyright/patent system.
As a large (as in one of the largest individual owners) shareholder in Viacom, I really wish you would pursue this. I was an director-level IT guy for five years with a large company that Viacom bought in 1994. I'm now an employee with National Amusements, the majority shareholder of Viacom. The culture of Viacom is the biggest thing holding the company back. The hatred of the customers is stupefying. They recently signed a deal with Global Broadcast News. In my experience, GBN has to be the worst media outlet in the entire world They're even worse than their other incompetent Indian competition. Aside: if you think Indians are bad a tech support, you haven't seen anything until you've seen the work they've done for Viacom. Viacom does not care about quality or their customers. Viacom has a great board of directors, but they can't overcome the bad culture. The middle and upper management needs to learn a hard lesson. That won't happen with one or two lawsuits or even with one or two major rounds of firings, but this sort of issue that the common man can understand is a great starting place. Just reading the comments here shows how well this issue resonates with the public.
add a 4 second clip of your middle finger.
pwned
Coming to you live from another dimension.
And could not. It is still owned by the original author.
By definition -- their definition, that is -- the MPAA/RIAA companies cannot ever infringe anyone's copyright. Only the "little people" can do that.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
You can't take the sky from me...
Spears' jokes are very original, I've never heard: of someone imitating a yoda voice, jokes about Star Wars being childish, or nerds not being able to get laid. I think Slashdot users should sue Viacom for slander, and stealing the jokes used here everyday!
My, slashdot, this field I'm typing into has the perfect dimensions!
Comment removed based on user account deletion
This is actually Viacom's new strategy to put YouTube out of business:
1. Identify popular YouTube content.
2. Air content without permission on a Viacom best-of-the-web program.
3. When author posts a clip of Viacom program, use DMCA to disable the account containing popular YouTube content.
4. Repeat.
Actually, Lucas said (I quote), "There is no sex in the Star Wars universe", and has always very stringently enforced that prohibition -- insofar as they can *locate* the perpetrators.
And that is why all SW slash is published entirely underground (or sometimes just hasn't been noticed yet by LucasArts). Of course this hasn't affected its popularity one bit.
But that doesn't mean they have any right or ability to prohibit satirical works such as your example.
~REZ~ #43301. Who'd fake being me anyway?
Ownership and distribution are two different legal things.
YouTube can give Viacom permission to use the clip, read the YouTube user license.
YouTube is Google, and ViaCom is already suing them for a Billion dollars.
The point is the Do No Evil mantra and when you post to Google, they only take enough of your rights to be a distributor of your content to the audience who you grant them the rights to distribute to at the price you choose to provide your material for distribution.
Support the 30 Hour Work Week!!!
Can we ignore the legal discussions for a moment and recognize that this is the best school-board campaign commercial ever?
This guy is my hero.
Cheers.
-no text, see title-
once you upload a video on youtube it no longer becomes your property anymore...its becomes googles (who is pretty much taking over everything these days), so since you put your own video on youtube originally its ok for vh1 or whoever to use it. but ya, ya cant take it from tv show directly and put it on youtube....ya doesnt make much since i know.
I've got a whole book at home of "Fairy Tales" that includes Aladin, Snow White, Sleeping Beauty, Beauty and the Beast, and many other public domain stories, complete with illustrations that bare a striking resemblance to Disney art... but nowhere in the book can I find a Disney copyright. So you're free to copy the original public domain works as much as you want... as long as you don't copy the changes to the story made by disney. Look at how many times "The Wizard of Oz" has been remade! Hint: the movie you all know and love was actually a copy of a cartoon made in 1933 that used the same black and white to color film transition. It also had ruby slippers, whereas in the original book the slippers were silver.
Perhaps you misread the summary. Viacom used the entire commercial.
That's copyright infringement.
He posted a clip of a segment of a portion of a show, that's fair use.
...or isn't the sadder thing is that this NERD- and he is a huge, honking NERD I wouldn't want anywhere NEAR my kids -thinks THAT commercial is going to cause me to want elect him to be NEAR kids he's loonier than hell?
Hey, I liked Star Wars when I was 14, IN 1977! I still like it now, but I wouldn't make a commercial to ask other adults to elect me to anything welding a light saber or dressed up like Mr. Spock and expect anything but withering ridicule.
This dude creeps me out. Seriously.
That assumes that the submitter HAS ownership. If he had just reposted the original commercial and put "As seen on VH1!" that would have been OK. But since he doesn't own the rights to the Viacom-blurbage around their airing of his segment, he can't legally grant YouTube the rights listed in their TOS. And any attempt to grant those rights (i.e. by posting the Viacom video) is a copyright violation, since most of the rights granted to YouTube fail to qualify as fair use. For example ...you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use...
We are the 198 proof..
For a work to fall under fair use it must be non commercial in nature along with several other factors. VH1, I would dare say more than likely inserted advertisements during the show that aired his clip. VH1 even if they ran 30 minutes without a commercial (hah), would still be easily proved a commercial entity. Therefore, VH1 can not escape licensing *anything* under "fair use"
At best it can hope for a very subtle clause in the EULA of you tube that indemnifies people from rebroadcasting.
I'ld read the license you signed up for. More than likely you waived your right to your work if VH1 aired it (they got lawyers who buff the VH1 rear end on a moment-to-moment basis) so more than likely although not fair use, it was a legal use of the work in question.
To reiterate:
It is amazingly hard to justify fair use for any commercial application. I recommend Understanding Copyright Law, do an amazon search for it, it's around 300 pages and was published I believe in 2002.
Sue the hell out of those bastards. Viacom would sue if they felt it was right, so this guy should sue Viacom.
You got it. All spontaneous generation. Goes to show you can't trust those pesky mitochondria around the womenfolk!
~REZ~ #43301. Who'd fake being me anyway?
This is why I don't post to youtube, or most photo sites: you give up too many of your rights to your own works.
Same thing with registrars. Many registrars have nasty clauses that say something to the effect of "you don't actually have any rights to this domain, if we want it or some company pays us more money, we can take it and sucks to you."
Does anyone know of a website that has compared and summarized the uploading "agreements" of sites like Photobucket, flickr, youtube, metacafe etc to see what rights each strips you of?
I know it's a lot of grunt-work to wade through all the legalese, but it would be nice to see it all side by side. A few years back I found a site that did that for registrars, which helped me choose the one I did.
"Cheeze it!" - Bender
http://en.wikipedia.org/wiki/Slander_of_title
..... Alternatively, it is casting aspersion on someone else' property, ...... saying a product infringes copyright or patent when it does not in order to discredit it.......
In law, slander of title is normally a claim involving real estate
http://www.bolender-firm.com/news0205.html
Injurious falsehood torts include trade libel and slander of title. Trade liable refers to the disparagement of the quality of another's goods or services, while slander of title refers to the disparagement of another's title to property. In order to state claim for trade libel, a plaintiff must allege the publication of the disparaging statement and that the statement has played a material and substantial part in causing others not to deal with him.
Actually he put his video in public domain. You should only use some form of Creative Commons License, and include it as the first frame of the Video. This will make anybody think twice before using your video without allowing the same courtesy to you. If everybody did that, we would simply find that these stealing ***** need to change their policies.
But ofcourse everybody will need to do this, a very difficult job indeed. We need to have a movement for it. We need it to become as popular as the Free/Open Software movement.
I don't know what the guys politics are, but he has a lightsaber in his commercial so he gets my vote
First of all, my point is that a "new version" is defined so broadly in Mirage that it includes what Viacom did here. look at the facts of Mirage:
Artist paints a picture; authorizes its inclusion in a book;
Art gallery cuts picture out of book, mounts it on a tile, does not modify picture IN ANY WAY;
Court decides picture-on-tile is a new version.
Compare with the facts here:
Videographer creates a video; authorizes its inclusion on video-sharing site;
Viacom pulls video off of website, ads some lead-in and lead-out, does not modify video IN ANY WAY;
Court decides . . . ?
It's the same thing.
WRT your comment on my Factor 1 analysis -- all of fair use presupposes an infringing use. If there's no infringement to begin with, then you don't bother asking if it's a fair use. And, clearly, without fair use, Viacom would have been infringing 17 USC 106(4), even if you don't buy my 106(2) analysis.
WRT your 3 additional fair use factors, note that 5&6 merge into Factor 1. And, it doesn't sound like there was much discussion or commentary -- it was approximate "Dude. look what we found on the internet," Your Factor 7 merges into Factor 3 -- you are, of course, right that Factor 3 plays more into longer works, but it still plays into shorter works. For example, pulling 10 seconds of a 30 second spot is still more likely to be fair use than pulling the entire 30 second spot, but the other factors play a larger role.
License! Include with your video clip an "enhanced" Creative Commons GPL style license. Have it say, simply, any media company can use my work to create derivative works or crappy clip shows on the sole condition that they release all of their current and future content for the next 4,000 years to the public domain as soon as it is created. THEN sue them for breaking the license agreement and have the courts force them to release everything they own.
Incidentally, if you've been involved in politics (or advertising in general I guess), you're familiar with the publicity nature. Exposure and free airing works against demonstrating the harm of infringement. The TV exposure only increased the commercial value of the work, which within and even beyond the fair use issue makes his complaint against Viacom substantially harder. Viacom enjoyed some benefit by filling time with that content (but it could have been filled with something else), but this guy enjoyed a much larger benefit as a result of Viacom's airing.
I think we're just going to disagree here. Should note, though, that a main difference in Mirage v. producing a print is that a print is a copy -- in Mirage, the defendant pasted the original to a tile.
I think we largely disagree on what Viacom did with it -- if they just showed it, adding little, for its own intrinsic entertainment value, I think you'd agree that it's not commentary or news reporting. If they did do those things, though, then the use changes dramatically. Since the clip was pulled down, however, I have no way of knowing.
Also, I'm not sure what "FFT" means -- are you referring back to Mirage?
In point of fact, I agree with you. As a matter of law, however, Viacom has a sound claim to the content--or more specifically, I should say, to the clip posted to YouTube. In the course of that interaction, the original clip producer could sue Viacom for copyright infringement, of course, but again, it's a rare day for a court to step in and say that there is a minimum standard to the news reporting exemption. If the TV people discussed the clip at all, which I think is reasonably well established, it qualifies as reporting. Again, the Viacom clip was more than double the length of the original as I recall, so any reasonable standard would have been met. Those "around the world in 60 seconds" on local news qualify for the exemption and they don't even discuss the stories individually. Further, in establishing the harm incumbent in copyright infringement proceedings, Viacom did not hurt any commercial interests of the owner--they in fact increased commercial value.
In any case, Viacom owns the copyright to the program that was clipped and posted to YouTube. The entire work is protected--there are no "sections" of a work in the law and even if Viacom did lose a copyright infringement case, it would still have the authority to demand YouTube remove that clip. Title is not voidable to an entire work because of a single element of infringement. Damages of course would be awarded to the owner on that element of infringement, along with other possible legal relief, but that's a story for another day.
'FFT' is shorthand "in the biz" for the four factor test established in Folsom for determining fair use. It is worth mentioning here, as always (because Slashdot has yet to collectively get this right), that this is for Fair Use and not "uses that are fair" (like backup copies and mix CDs). Personal non-infringing uses are just that--non-infringing--and not Fair Use.
I am not a lawyer. I have had conversations with law professors about these issues, but I may easily have misunderstood. I'm not using formal law language, this is all in lay terms.
First off, of course, "not having done it" is a defense to battery, and in the U.S., innocence is assumed with the burden of proof falling to the prosecution. If I seemed to disagree with that, then I did a poor job of expressing myself.
But a "self-defense" defense means that you've admitted to the court that you hit somebody. If you admit you so much as threw a wad of paper at someone, you can be found guilty of battery, at least in my state. In self-defense, the defendant is claiming is that he did so because he had reasonable cause to believe that the other person was going to cause him harm.
Therefore, there is a presumption of fact in employing the defense, which means that one is no longer presumed innocent; one must prove they were justified. This is usually when there are significant witnesses to the event and there is no way to dispute the contact. Otherwise, it's much easier to fall back on the presumption of innocence.
But this defense doesn't translate into a right to beat on anyone you think may harm you. There are people who, for instance, think anyone of a certain race is bent on harm. It doesn't give them the right to go beating on people of that race, no matter that they fear for their life, if it isn't "reasonable." Certain, but not all, defenses must be proven in court, and presume certain facts, usually based around the legal fiction of the "reasonable person."
That's why they talk about being found "not guilty," in a court, as opposed to being found "innocent." It's not up to the court to determine innocence, they determine guilt, or in civil cases, make a ruling and order a judgment against the losing party.
I hope that seems clearer and more consistent regarding self-defense.
I think we have different concepts of what the word "right" means, so I'll be more specific.
In my understanding, an individual right means that you have an intrinsic, legally binding ability (an entitlement) to perform in a certain manner, without qualification. These rights may be abridged only by other rights.
Therefore, you have a right to say whatever you want (freedom of speech), but not to yell "Fire!" in a crowded theater because that would violate the rights of the other patrons to not be harmed in a riot, and that right legally outweighs your right to free speech. This is a case of one right abridging another. Only stronger rights can abridge another right.
"Fair use" refers to both the provision in copyright law, and the defense. It is a legal exception to a right, therefore can't be a right of its own. But if the question of copy itself is in dispute, there is no need for a fair use defense at all! You didn't make the copy.
Otherwise, such exceptions are often based around your own rights (such as self-defense, where it is reserving your right to defend yourself from be harm), but often also for the public good, as in fair use. There is no actual individual right involved with fair use. Fair use is for the good of the community, as is, supposedly, copyright.
There is no actual right to copy when a person uses fair use as a defense. The rights holder and his licensees are the only holders of that right. If the rights holder decides to make a stink about your purported fair use, and the fact is established that you indeed made copies, you have to prove it met the exceptions. You are not presumed to be entitled to copyright because you are a teacher and it was "for your class," for instance. You have to produce evidence, documentation and/or certifications to that point.
In broad strokes, fair use is by no means automatic nor an entitlement, and if a person agrees to the fact that he made copies, then he has to prove that he met the conditions of the exception.
That is, by the definition I understand, not a right. A right
Well, under 103(a), there's the idea of separate protection (or non-protection) for a "part" of a work. If you create an unauthorized derivative work, then your unauthorized work is not protected. If you create a larger work that is derivative from an earlier work, then the part of your work that uses the earlier work is not protected. An easy example would be an issue of Reader's Digest, where the magazine did not have permission to include one of the abridged articles. Under 103(a), Readers Digest would not have a copyright in the abridged article and, in fact, the original author could then publish that abridged version.
I don't know that the music industry would agree with you that backup copies or mix CDs are non-infringing. As Jack Valenti famously said, "If you want a backup, buy another copy."
That argument would be predicated on the program being classified as an anthology, compendium, or compilation. It's an interesting idea, but one without common law support. Aside from a special set of programs, television shows are single works under the law.
Of course it further requires classification as a derivative work, which this is not. It can't be non-transformative and derivative at the same time, both of which were asserted in the course of the discussion.