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!"

Comments

LITIGATE!

[Anonymous Coward]

You need to sue yourself for everything you're worth. Oh, and can I be your lawyer? I'll work for 30%.

Re:LITIGATE!

[halcyon1234]

Nonono, dude, don't listen to the AC! Be your own lawyer-- on both sides. That way, when you sue yourself for everything you're worth, not only will you gain everything you own, but you'll also get 30% of it in lawyers fees. And if you defend yourself, you'll get another 30% in lawyers fees from you.

That's 160% of everything you're worth! My God, what a profit. No wonder everyone's suing-as-a-revenue-stream these days. Look at the return!

Re:LITIGATE!

[falcon5768]

1) it could be considered parody, in which case its free game.

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.

Re:LITIGATE!

[Notquitecajun]

Imagine when things get crazy when you settle with yourself out of court for an "undisclosed amount."

Re:LITIGATE!

[MadJo]

You have just found step 2 in all those
step 1: something-something
step 2: ???
step 3: profit!

Amazing! I'm going to try it out.
MadJo prepare for a lawsuit, 'cause I'm suing you!

He should counterclaim

[LiquidCoooled]

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?

Re:He should counterclaim

[TheKnightShift]

"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."

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?

Pulled clip is...

[Whiney Mac Fanboy]

Pulled clip is here.

(I have no idea about the legalities, but viacom seems to be at the very least pretty fucking rude here).

Re:Pulled clip is...

[tee1977]

This doesn't look to be the original, undedited clip. I wonder if the original had a copyright notice attached. If not, there are still some protections available for the owner, but not as much as I understand it (not a lawyer). However, if he has "Copyright(C)2007 by ... All Rights Reserved" at the end or beginning then he's in good shape.

It would probably do very well for all individuals posting on youtube to do this in order to protected their rights as much as possible.

This post Copyright(C) 2007 by tee1977 All Rights Reserved
(Slashdot.org is free to use it as it sees fit, except to sell it to Viacom.)

Re:Pulled clip is...

[Actually, I do RTFA]

"Copyright(C)2007 by ... All Rights Reserved" is just an indication to other people out there that you know you have those rights, and are implying you will exercise them. It doesn't changeyour legal rights in the slightest. Just like (where I live at least), a "Home Invaders will be shot" sign is not a prerequite for shooting a home invader, just a warning so you are less likely to have to.

IANAL

Two infringements make a right?

[saterdaies]

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.

Re:Two infringements make a right?

[Random832]

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. No, it's an unauthorized derivative work - they own NOTHING. 17 USC 103(a).

Re:Two infringements make a right?

[Abcd1234]

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.

Re:Two infringements make a right?

[cfulmer]

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.

Fair Use

[TheGreek]

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.

Re:Fair Use

[LiquidCoooled]

So if I post an entire movie but give a commentary of it alongside its fair use?

Re:Fair Use

[tarogue]

"There is no right to fair use." -- Preston Padden, head of government relations for Walt Disney Corp.

Re:Fair Use

[Anonymous Coward]

So if I post an entire movie but give a commentary of it alongside its fair use? MST3K would have been far more hilarious if this were true. Sadly, it is not.

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.

Re:Fair Use

[halcyon1234]

And the funniest part-- the whole things is still a derivative from George Lucas' work. So he should jump into the ring, and sue both of them. Sue them in Endor!

Re:Fair Use

[TheGreek]

Listen moron - you cannot take someone elses work and do anything with it unless the author of such work agrees to it. That is theft pure and simple. There is no such thing as "Fair Use" for any material.

Yeah, I'm a real moron. Let's go look at US Code, shall we?

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

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.

Who's the moron now?

Re:Fair Use

[eric76]

If he paid an outside studio to do it, I would assume they acquired permission from the copyright owners.

Of course, the licenses may have been to only air the advertisement a maximum number of times or for a limited period of time.

Re:Fair Use

[hedwards]

I'm pretty sure that they didn't use excerpts, but used more or less the entire thing. Besides the show isn't a news cast or similar journalistic endeavor.

I find it hard to believe that in an era where a tv show or movie has to get ever little item in a shot cleared of trademark infringement that an issue this large in comparison would be OK.

Re:Fair Use

[MartinG]

Actually, he didn't even say it was copyright infringement. He said it was "theft pure and simple" which is even more wrong, and that's saying something.

Re:Fair Use

[LordKronos]

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. Sure he did. He posted it on his blog, then discussed how funny the segment was, and then went on about how it turns out that, through exposure like this, his cheesy campaign ad is actually doing more for awareness of the causes he supports than it did for his career, but that he's ok with that because trying to fix those problem is more important to him than the job he ran for.

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).

Re:Fair Use

[AusIV]

He then used Viacom's derivative work, but, it seems, didn't provide any commentary on the clip you uploaded to YouTube.

Here's an interesting caveat with YouTube and fair use. The submitter said he posted the video on YouTube so he could put it up on his own blog - making use of YouTube as a file host. Assuming the blogger did make (written) commentary on his own blog, but the video is also available on YouTube without commentary, where would fair use come down on the issue? (I'm also assuming it was not an entire work from Viacom, simply a section of a TV show that talked about his ad.)

Re:Fair Use

[Dave21212]

Um... "Viacom was reporting the news and providing commentary on the advertisement."

You obviously aren't familiar with the WebJunk show :) It's a clip-show, which is a show comprised of video clips from multiple sources. It's most defintitely NOT a news show or a critical commentary, it's pure entertainment (albeit, that's an arguable point;)

Calling WebJunk a news show is like calling America's Funniest Videos a documentary

I think Viacom is a clear violator here, the copyright owner however is probably exercising fair use when he posts a segment (not the whole show) and makes relevent commentary on it.

And to get more directly to the topic at hand, this guy in no way violated anyone's copyright, yet he was slapped with a violation notice, and it seem that the big boys get to do that with impunity these days (whether they are correct or not).

Re:Fair Use

[cfulmer]

That's not entirely clear from the facts. He has at least a decent claim that Viacom's use was not fair -- it's not particularly transformative (minimum commentary), it was a creative original work, and the entire thing was taken. To me, that sounds like infringement.

But, here's where it gets more interesting: if you create an unauthorized derivative work (which, if I'm right, Viacom did), you hit 17 USC 103(a):

". . . protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully."

In other words, the portion of Viacom's work that includes the original video IS NOT COPYRIGHTABLE.

As a result, his posting of that portion was perfectly legal.

Re:Fair Use

[Merk]

so I posted a clip of VH1's segment

Sure sounds to me like it wasn't the entire show.

Re:Fair Use

[MrNiceguy_KS]

Wow. A court battle where the Chewbacca defense might actually be relevant! I think MY head is going to explode.

Re:Fair Use

[cpt kangarooski]

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.

Re:Fair Use

[cpt kangarooski]

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.

Re:Fair Use

[jollyreaper]

And the funniest part-- the whole things is still a derivative from George Lucas' work. So he should jump into the ring, and sue both of them. Sue them in Endor! He can't. Endor was destroyed in the aftermath of the second Death Star's explosion.

Re:Fair Use

[Anonymous Brave Guy]

The submitter said he posted the video on YouTube so he could put it up on his own blog - making use of YouTube as a file host. Assuming the blogger did make (written) commentary on his own blog, but the video is also available on YouTube without commentary, where would fair use come down on the issue?

I'm not a lawyer and obviously don't know what the courts will decide, but I suggest the following interpretation:

A reasonable argument in favour of a copyright exemption is to allow copying a sample of a work to illustrate critical commentary. A sample would be of significant value when used in connection with the commentary, but of limited value in isolation, and thus it would meet the standard fair use ideal of allowing reuse of the material without damaging the market for the original.

Therefore, if the clip on YouTube is of only incidental value when viewed separately, it should be regarded as legitimate. However, if it's a substantial chunk of the original work being republished unmodified and having value in its own right, then it's more than just a sample and it goes beyond just supporting a critical commentary, so it should not be exempt.

This gives a fairly black-and-white test for courts to apply to determine whether material is fair use in such cases, and seems to me to be consistent with the statute law in the US.

Re:Fair Use

[GodsBlood]

Fair use is limited to reasonable excerpts. Otherwise, what's stopping me from copying an entire movie, then adding "I liked this movie" at the end. Lack of quality movies?

Re:Fair Use

[mr_mischief]

Bullshit.

Viacom doesn't own the clip made from his clip because it's a derivative work of his clip. A commentary is not enough for them to claim fair use of his entire clip. The only part they might be able to claim copyright on is their commentary.

He then used their commentary along with his own copyrighted content, so that's fair use of their commentary.

IANAL, but there seems to be copyright infringement, attempted misappropriation of copyright, and a fraudulent DMCA take-down notice all coming from Viacom.

Re:Fair Use

[Fallen Kell]

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

      1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      2. the nature of the copyrighted work;
      3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      4. the effect of the use upon the potential market for or value of the copyrighted work.

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.

hmmm.... let me see here, VH1 airs a show that is entirely so that they can generate money from advertising... While they also used it to comment on the clip, they did air the entire show, in a for-profit work. Now the original author of the segment, takes a small clip of the entire VH1 show, comments on it in the blog, and posts the clip. In other words, neither side really has much of a case against either one for the copyright infringement. However, the original author does have a case against VH1/Viacom for their illegal takedown notice using the DMCA if he cares to pursue the issue.

Re:Fair Use

[nine-times]

I still think there's an interesting issue here-- even assuming the submitter has the right to copy/display the work as "fair use", does that mean that YouTube had the same right to be hosting it? What I mean is, even if he only threw it up on Youtube so he could host it on his own site, and his site was exercising fair use, Youtube is still generating profit by allowing people to view the video, and as you mentioned, it isn't necessarily accompanied by commentary.

Notice Viacom didn't sue the submitter for copyright infringement, but still got Youtube to take the video down. I'm not sure I'm making my point clear, but maybe the submitter does have the legal right to post the video, but Youtube doesn't have the right to make money by being the submitter's host for the movie. Is there a legal distinction there?

IANAL, but it seems to me that the submitter might have more luck hosting the video on his own site.

Re:Fair Use

[LordSnooty]

From YT's terms:

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.

They get a license to use your work as they choose, but it's non-exclusive and you retain copyright. There's nothing there which permits use of your clip by any entity other than YT (and its affiliates). It goes on to say YT users are granted a license to stream the video but only from YT themselves.

Re:Fair Use

[Pollardito]

clearly the OP meant that it was destroyed in that big party, Ewoks are well-known for their drunken rages

Re:Fair Use

[aprilsound]

... 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.

Re:Fair Use

[Anonymous Coward]

I suggest a new copyright defense strategy R2: Let the wookie win.

Re:Fair Use

[UbuntuDupe]

Yeah, but then that would violate the business model patents of most blogs I know.

"Bob Hoffenbacker makes a good point in today's New York Times about foreign policy.

[quote of entire gated version of an essay]

I agree.

UPDATE: Commenter 5 makes a good point.

Permalink | Comments(30) | Trackback(0)"

Re:Fair Use

[Gulthek]

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

Re:Fair Use

[bigalexe]

I find your lack of faith in the Justice System disturbing.

Re:Fair Use

[bugnuts]

In addition, "Fair Use" is an admission of copyright violation, but one that is excusable. You are granted copyrights on your original works in a fixed medium, and Fair Use gives certain allowances where violating that copyright may not be prosecuted.

Re:Fair Use

[TubeSteak]

Notice Viacom didn't sue the submitter for copyright infringement, but still got Youtube to take the video down. The first step in any copyright action is to stop the infringement. You can do this through a DMCA takedown request, a Cease & Desist letter from a lawyer, you can go to court and ask for an injunction, etc etc etc.

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.

Re:Fair Use

[Anonymous Coward]

Some of the movies I download already include commentary in them, usually it's the audience watching the movie in the theater. So it's legal now? :)

Re:Fair Use

[Kiffer]

LordSnooty said...

From YT's terms:

      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.

They get a license to use your work as they choose, but it's non-exclusive and you retain copyright. There's nothing there which permits use of your clip by any entity other than YT (and its affiliates). It goes on to say YT users are granted a license to stream the video but only from YT themselves.

Does sublicenseable and transferable mean that they can license it to third parties?

Re:Fair Use

[dabraun]

They get a license to use your work as they choose, but it's non-exclusive and you retain copyright. There's nothing there which permits use of your clip by any entity other than YT (and its affiliates). It goes on to say YT users are granted a license to stream the video but only from YT themselves.

Actually - from the terms of use:

>> sublicenseable and transferable
>> in any media formats and through any media channels.

The question is, did YouTube sublicense this? Do they have a general agreement allowing such sublicensing? Do they even need to do this 'beforehand' or can they OK it after the fact?

I think the idea that Viacom can use his content yet he can't use their content which is specifically in reply to his content is extremely lame - however, sadly, it may actually be the way the agreements work out.

Re:Fair Use

[geobeck]

Everyone is missing the point:

If you are a big company with high-priced lawyers on retainer, you can use anything that belongs to any individual for any purpose.

If you are a regular individual, all your IP are belong to us.

Re:Fair Use

[hoppo]

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.

Recourse

[WPIDalamar]

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.

Re:Recourse

[falcon5768]

exactly the clip becomes public domain at that point. More interesting though is that Viacom is trying to enforce its copyright rules when this clearly falls under federal fair-use laws, especially since the person in question was the original clip maker. This is akin to re-printing a news article about your movie or show on your website for promotion (which is allowed and just about everyone does, INCLUDING Viacom and its subsidiaries.)

Re:Recourse

[wonkavader]

No, you're missing the obvious answer:

Make a little movie about how Viacom sucks, how they violated your copyright, etc. (Just tell the story.) Then post that video with the original video they pulled INSIDE it. Do it fast, so it can get slashdotted, and you've just made a shit-storm for viacom, and gotten some personal publicity for you and your little youtube thingie.

Never give those scumbags an inch

[Rude Turnip]

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.

Re:Never give those scumbags an inch

[Duhavid]

Funny...

I always thought "business" was about me wanting something
that you had, and you wanting something I had, and we two
coming mutually together on trading these things so that
we both had things we valued more than what we had previously.

You know, a win-win situation. No exploitation involved.

I know, how quaint.

Re:Never give those scumbags an inch

[Duhavid]

Business is about exchanging ( perhaps trading was a misleading term for you )
something I have that you value for something you have that I value. Those
somethings can be labor, money, goods or services. And in so exchanging,
no-where did I exclude that profiting might be part of the transaction.

So, my point is what is wrong with profiting, but leaving both parties happy?

Countersue

[Catiline]

IANAL, but I agree with the other comments here:

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.

Depends

[faloi]

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.

Re:Depends

[Aladrin]

"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.

Re:Depends

[Aladrin]

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. "

Unfortunately, they're technically correct

[IBBoard]

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.

Endless cycle of VH1

[Jozxyqk]

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.

The links seems to be working

[140Mandak262Jamuna]

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?

You fail to understand one thing

[palladiate]

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.

Re:You fail to understand one thing

[Double Entendre]

Would that argument actually hold up in court? According to Wikipedia's entry on copyright (obtaining and enforcing copyright), monetizing the work is not one of the pre-requisites qualification.

If I interpret your statement correctly, aren't artists who do not wish to sell their works wide-open to abuse. Doesn't that defeat the whole purpose?

Hah!

[Anonymous Coward]

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.

About 20 years out of date

[gvc]

Copyright notices have not been required in the U.S. since 1989.

Re:Star Wars

[Binestar]

I'm just surprised that George Lucas hasn't filed a suit yet! ;-)

Why is that? LucasFilms encourages little films like this.

An interesting wrinkle

[hey!]

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.

Both actions were illegal

[swillden]

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:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

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.

Who's the moron now?

[Organic Brain Damage]

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.

Re:Who's the moron now?

[The_Wilschon]

You should find a good attorney at www.66lawyers.com and sue them. Suing an attorney sounds like a terribly bad idea.

Lawsuit happy when it suits them

[infonography]

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)

Re:Wrong.

[Dunbal]

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".

I've never worried that I've been "damaged" ...

[TheKnightShift]

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.

Trix

[PortHaven]

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.

Yet another confused Slashdot header

[The Empiricist]

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.

Re:There's this old saying...

[anexium]

no, but three lefts do...

Always wholesale and always highly inaccurate

[dpbsmith]

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.

Re:Contact Them

[Wite_Noiz]

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.

read the YouTube license...

[Anonymous Coward]

...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."

Privateering the Public Domain

[Doc Ruby]

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.

Re:Making money is not the sole criteria

[lamplighter]

True, there are other criteria besides whether they made money.

But I would suggest that how much money they may have made is irrelevant. They air programs with the goal of making money, whether they succeed in that goal or not. What's important is the fact that Viacom tried to make money using a clip that they didn't get permission to use.

Re:incredible

[zalas]

Kind of reminds me of http://bash.org/?104052

Here's how this works, Chris

[Torodung]

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

Here's an error that you made, Toro

[TheKnightShift]

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 :-)

Actually, it's _you_ who seem not to understand

[_.- thimk! -._]

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--

1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment-- (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.

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

don't get me started

[Scrameustache]

And the funniest part-- the whole things is still a derivative from George Lucas' work. And Luca's works is derivative of Asimov, Herbert, Kurosawa, Tolkien, etc, etc, etc.

Re:porn? nope...even that's ok

[LoverOfJoy]

Actually, Lucas said (I quote), "There is no sex in the Star Wars universe", and has always very stringently enforced that prohibition

So THAT'S why Anakin doesn't have a father...