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%.

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.

Re:Fair Use

[LiquidCoooled]

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

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: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: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

[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

[MrNiceguy_KS]

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

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?

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?