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!"
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.
"A. You agree not to distribute in any medium any part of the Website, including but not limited to User Submissions (defined below), without YouTube's prior written authorization."
Do you think they got that before they played the clip on live TV?
"A. The content on the YouTube Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to YouTube, subject to copyright and other intellectual property rights under the law. Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. YouTube reserves all rights not expressly granted in and to the Website and the Content."
No, YouTube doesn't own the content that users upload.
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
Oh, sorry, 1 more... Probably the most important, too.
"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. "
"If you make people think they're thinking, they'll love you; But if you really make them think, they'll hate you." - DM
From Wikipedia: The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying--entire programs for private viewing--was upheld as fair use. Likewise, see Kelly v. Arriba Soft Corporation,where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use." Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters,[9] the use of less than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.
Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright v. Warner[10] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[11] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.
Copyright notices have not been required in the U.S. since 1989.
I'm just surprised that George Lucas hasn't filed a suit yet! ;-)
Why is that? LucasFilms encourages little films like this.
Do you Gentoo!?
The problem is that his commentary was textual with the video embedded, so when you see it directly on youtube you don't see any of that corresponding commentary (unless he posted commentary in the comments too...no way to know now, since the page is gone).
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
The commentary on your clip renders their use of it fair use. You have no actionable claim against them.
No, this is not fair use if they use the entire clip. It's like saying you can reproduce an entire novel by putting quotes on the first and last pages. They are allowed to show a SMALL PORTION of the clip under fair use, "for the purposes of review".
Seven puppies were harmed during the making of this post.
2) Lucas has pretty liberal fan use guidelines. Pretty much as long as your not making a profit from it monetarily, and its not a porno, its ok. They even opened up much of the sound archive for fans to use in their films.
"Slashdot, where telling the truth is overrated but lying is insightful."
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.
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.
Sure sounds to me like it wasn't the entire show.
We've secretly replaced Slashdot with new Folgers Crystals - let's see if it notices.
Fair use is limited to reasonable excerpts.
No it's not. The amount and substantiality of the work are factors, but not determinative on their own. Sometimes a fair use can involve an entire work, e.g. certain instances of time or space shifting. Sometimes using only excerpts is nevertheless unfair, as in Harper & Row v. Nation, where excerpts from a book were published unfairly.
What is necessary is to look at the use overall, which typically will include looking at the four enumerated factors. The analysis isn't mechanical at all. Even if most of the factors weigh against the user, the use can nevertheless be fair. Even though it sounds like a tautology, a fair use is a use that is fair; there's no bright line rules as to what that will be, and it varies with the circumstances surrounding each individual use. That is, not each type of use, but each specific use. If Alice and Bob each are parodists, say, and each makes a parody of a work, there's nothing to prevent Alice's work from being fair, while Bob's is unfair. You have to look at each independently.
Otherwise, what's stopping me from copying an entire movie, then adding "I liked this movie" at the end.
Do you think that it would be a fair use? Without knowing more about your hypothetical situation, I really couldn't say.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I don't want to be an "asshole" about it (my wife would never let me live it down for one thing... :-)
But I will try my best to take this as far as it can possibly go, if that's what it takes to get some basic acknowledgement and respect for anyone who creates content.
Someone here suggested that I'm doing this because of "political damage", as if I'm bitter about how the original commercial was used. Heck I knew when I made the thing that I would get heat for it. And I did: the day it started airing on local television, some people were calling in during the live show and said that I must have "mental problems" for blowing up the school etc.
In the end, I got almost 4,700 votes: not enough to place in the top 5 finishers and get a seat but it put me 8th place out of 16 candidates. I've never been bitter about that: running for office like this was one of the best experiences of my life and not for a moment have I felt upset about not winning. There was just too much good that did come out of it to feel upset for any reason. And that this commercial seems to have such long-term staying power is one of the best things that came out of it.
I'm delighted that VH1 thought it funny enough to include in their show. I just want to be able to show the world how delighted I am that they are using it. Shouldn't anyone in my position be entitled to that much?
one possible remedy would be for the copyright of the derivative work to revert to the original work's creator.
No, that would not be possible. A work which includes derivative material used unlawfully is uncopyrightable in that portion per 17 USC 103(a). And forcibly handing over the copyright to original material would be an extreme and likely unacceptable remedy.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
...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."
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
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
... if you read YouTube's policy you give up all your rights to whatever you upload and they take legal ownership of it. Viacom only needed to ask YouTube (the legal owner of the clip) for permission... You're just making stuff up. The submitter retains ownership. From the ToS you claim to be quoting (Section 6): 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. 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. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.Sad deluded fool. Endor wasn't destroyed immediately, but it was indeed destroyed. Its destruction was even mentioned in the Star Wars books.
Read on, if you dare: Endor Holocaust
Judges don't like it if you sue someone for infringing your copyright & you haven't first tried to mitigate the damages. Hence the DMCA takedown action in this case.
[Fuck Beta]
o0t!
There doesn't have to be language to specifically permit a certain piece of activity in the terms and conditions. If the term sheet used the words "limited to" your argument might be valid. However, the language of this particular clause pretty much permits YouTube to use your content in any manner they choose if you provide it to them. There are several angles from which YouTube and Viacom are covered:
1. "in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business..." -- if there is an agreement between Viacom and YouTube to run YouTube content on Viacom's "Web Junk" show, the distribution of those works is then in connection with YouTube's business.
2. "including without limitation for promoting... through any media channels" (emphasis added) -- again, this is a valid channel through which the YouTube site can be promoted. Obviously, a show featuring user-generated internet content and giving proper attribution to the content's sources is a promotional arm for those sources.
IANAL, but I have (painstakingly) negotiated the language of several PSAs where ownership and license of the work product were fundamental concepts. Technically, and unfortunately, Viacom's argument is legally quite sound based on the terms of service to which this Knight agreed (although it would seem to me his use of the content from "Web Junk" would qualify as fair use, but I guess that would be for a judge to decide were he to pursue it). Regardless, for Viacom to benefit from something he produced, not provide him any kind of compensation, and then deny him the privilege of sharing his fifteen minutes with his loyal readers just strikes me as being downright non-neighborly.