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!"

LITIGATE!

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

Fair Use

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

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

Re:Fair Use

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 [wikipedia.org]:

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

From YT's terms: [youtube.com]

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

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

... 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 [youtube.com] 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.

Lawsuit happy when it suits them

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:Fair Use

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

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

Re:Fair Use

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

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

Re:Fair Use

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

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

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

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

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

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 [cornell.edu], 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?

Who's the moron now?

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?

You should find a good attorney at www.66lawyers.com and sue them.

Suing an attorney sounds like a terribly bad idea.

Re:Fair Use

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:LITIGATE!

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!

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!

He should counterclaim

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

"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...

Pulled clip is here. [politicalsoup.tv]

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

About 20 years out of date

Copyright notices have not been required in the U.S. since 1989 [copyright.gov].

Two infringements make a right?

While Viacom was stupid in this matter, they are techhnically correct (the best kind of correct ;-)). He did infringe Viacom's copyright - they own everything surrounding his clip that was a part of that program.

Now, he could easily countersue Viacom for copyright infringement to the tune of lots of money, but that doesn't mean that Viacom doesn't still own that work they produced around the infringement.

Re:Two infringements make a right?

While Viacom was stupid in this matter, they are techhnically correct (the best kind of correct ;-)). He did infringe Viacom's copyright - they own everything surrounding his clip that was a part of that program.

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

Re:Two infringements make a right?

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.

Recourse

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

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.

Countersue

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

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

"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.

Unfortunately, they're technically correct

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

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

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

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.