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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!"
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.
How many copies did Viacom sent out to viewers homes?
Isn't it something like $250,000 per copy? Assuming that everything this guy is saying is true, he has a great opportunity to make Viacom pay and make them pay hard. And I hope that Chris does because that's the only way Viacom is going to learn its lesson. If I were Chris, I would file a lawsuit that throws their numbers right back at them to the tune of billions and let their lawyers deal with it.
This could be a case that turns around the current situation.
Chris, if ever you had the opportunity to be an asshole but be right about being an asshole, now is the time. Take Viacom to the cleaners for all of us.
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.
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.
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.
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!
From a quick look through the YouTube ToS, Viacom may actually be allowed to use his work without asking for permission (assuming they are a YouTube affiliate):
http://youtube.com/t/terms
6.C. "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."
It's possible Viacom really dropped the ball on this and are indeed infringing; but Chris should really be careful how he treads.
No, it's an unauthorized derivative work - they own NOTHING. 17 USC 103(a).
Unless the clip was used for scholarship, criticism, parody, or a number of other exceptions which fall under the fair use doctrine. And given the usage included commentary, fair use may very well apply.
You can't take the sky from me...
Don't confuse fair use with derivative works -- they're not mutually exclusive. For example, I could take a work, insert my own commentary and produce a derivative work which is also a fair use.
A derivative work does not necessarily need to be a new version of the work. Consider Mirage Editions v. Albuquerque A.R.T. Co. -- the defendant took pieces of the plaintiff's art, pasted them to ceramic tiles, and sold them, creating a Derivative Work! This is very similar to what Viacom did here, only Viacom pasted the work into a somewhat broader video.
By saying "I just answer that question in the negative," I mean that I don't think Viacom's use was fair. Consider:
Factor 1: the use was commercial, for entertainment purposes, and not particularly transformative.
Factor 2: the copyrighted work was a creative video, at the core of copyright protection
Factor 3: the entire work was used
Factor 4: little to no effect on the market.
Factors 1-3 say no fair use.
If we assume that the Viacom video was an infringing unauthorized derivative work, then the portion of the video that included the work is not protected by copyright (under 103(a)), and the poster could do whatever the heck he wanted to with it.