Viacom Says User Infringed His Own Copyright 404
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! (Score:5, Funny)
Fair Use (Score:5, Interesting)
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 (Score:5, Interesting)
Re:Fair Use (Score:5, Informative)
From Wikipedia [wikipedia.org]:
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.
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Re:Fair Use (Score:5, Informative)
Re:Fair Use (Score:5, Insightful)
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.
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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.
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1. "in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business
Re:Fair Use (Score:5, Informative)
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"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 (Score:4, Interesting)
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Re:Fair Use (Score:5, Funny)
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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 (Score:5, Funny)
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Re:Fair Use (Score:5, Funny)
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Read on, if you dare: Endor Holocaust [theforce.net]
don't get me started (Score:3, Interesting)
And the funniest part-- the whole things is still a derivative from George Lucas' work.
And Luca's works is derivative of Asimov [wikipedia.org], Herbert [wikipedia.org], Kurosawa [wikipedia.org], Tolkien, etc, etc, etc.
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Well, it might be.
Or Viacom's clip might be an unauthorized derivative work of the guy's video. In which case Viacom has potential liability for copyright infringement. And if Viacom is found to have infringed copyright, one possible remedy would be for the copyright of the derivative work to revert to the original work's creator.
But then, the guy may not want to pursue relief, because the response might be a claim t
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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.
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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 o
Re:Fair Use (Score:5, Insightful)
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 (Score:5, Interesting)
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.
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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 fo
Re:Fair Use (Score:4, Informative)
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.
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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
Re:Fair Use (Score:4, Interesting)
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 (Score:5, Informative)
Who's the moron now? (Score:5, Funny)
P.S. I'm a moron too. We're all morons on this bus.
Re:Who's the moron now? (Score:4, Funny)
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Re:Fair Use (Score:5, Insightful)
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.
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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 anal
Re:Fair Use (Score:5, Funny)
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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.
Lawsuit happy when it suits them (Score:5, Informative)
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)
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Sure sounds to me like it wasn't the entire show.
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Um... "Viacom was reporting the news and providing commentary on the advertisement."
You obviously aren't familiar with the WebJunk show
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 prob
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Comment removed (Score:5, Informative)
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Re:LITIGATE! (Score:5, Funny)
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!
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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!
Sue them for millions (Score:2)
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you lost 89 billion dollars in lost sales because they violated your copyright. Hey if the RIAA, MPAA, Tv corporations and Software companies can claim such absurd numbers in court and congress, then you are entitled to claim the same absurd numbers as well.
"Yes your honor, viacom has lost me 100 billion trillion dollars in lost sales. I'll gladly take a summary judgement of 0.1 percent of my losses."
The very LEAST think you should do.. (Score:2)
Then again; he's never given them a written license, so he might as well claim the implied license was on the condition of him being able to use their work.
He should counterclaim (Score:4, Funny)
How many copies did Viacom sent out to viewers homes?
Isn't it something like $250,000 per copy?
Re:He should counterclaim (Score:5, Informative)
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... (Score:5, Informative)
(I have no idea about the legalities, but viacom seems to be at the very least pretty fucking rude here).
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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) 20
About 20 years out of date (Score:5, Informative)
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"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
Contact Them (Score:2)
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Sue them to hell and back. (Score:2)
Two infringements make a right? (Score:4, Insightful)
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? (Score:5, Informative)
Re:Two infringements make a right? (Score:4, Interesting)
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.
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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 pas
Recourse (Score:5, Insightful)
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.
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Who can blame him?
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Re:Recourse (Score:5, Insightful)
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 (Score:2, Insightful)
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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.
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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 (Score:3, Insightful)
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 (Score:4, Insightful)
I don't like it, but the law (and the money) is probably on Viacom's side.
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Granted; but, that doesn't make it any less hypocritical.
Re:Depends (Score:5, Informative)
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.
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"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 wi
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Generally the law follows the money. If you have more money than the other guy, you will probably win. That is why the legal system sucks.
Unfortunately, they're technically correct (Score:5, Insightful)
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 (Score:5, Funny)
The links seems to be working (Score:3, Insightful)
You fail to understand one thing (Score:5, Interesting)
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.
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Would that argument actually hold up in court? According to Wikipedia's entry on copyright [wikipedia.org] (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?
So follow in their footsteps.... (Score:2)
I find it absolutely disgusting - but not at ALL surprising - that big media think they can use the Internet as a source of free content.
Star Wars (Score:2)
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Why is that? LucasFilms encourages [atomfilms.com] little films like this.
Hah! (Score:2, Interesting)
Does the Star Wars theme help? (Score:2)
An interesting wrinkle (Score:5, Interesting)
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.
I've never worried that I've been "damaged" ... (Score:4, Informative)
Both actions were illegal (Score:5, Insightful)
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:
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.
Trix (Score:3, Funny)
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.
Always wholesale and always highly inaccurate (Score:5, Interesting)
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.
Privateering the Public Domain (Score:3, Insightful)
Here's how this works, Chris (Score:3, Informative)
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 [starwars.com] haircut.
--
Toro
Here's an error that you made, Toro (Score:4, Informative)
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 :-)
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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".
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