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Media Your Rights Online

Viacom Says User Infringed His Own Copyright 404

Posted by kdawson
from the catch-44 dept.
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!"
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Viacom Says User Infringed His Own Copyright

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  • LITIGATE! (Score:5, Funny)

    by Anonymous Coward on Thursday August 30, 2007 @08:49AM (#20410069)
    You need to sue yourself for everything you're worth. Oh, and can I be your lawyer? I'll work for 30%.
    • Fair Use (Score:5, Interesting)

      by TheGreek (2403) on Thursday August 30, 2007 @08:53AM (#20410121)
      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 (Score:5, Interesting)

        by LiquidCoooled (634315) on Thursday August 30, 2007 @08:57AM (#20410177) Homepage Journal
        So if I post an entire movie but give a commentary of it alongside its fair use?
        • Re:Fair Use (Score:5, Informative)

          by Anonymous Coward on Thursday August 30, 2007 @09:08AM (#20410289)

          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: (Score:3, Funny)

          by 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 (Score:4, Interesting)

        by tarogue (84626) on Thursday August 30, 2007 @09:04AM (#20410243)
        "There is no right to fair use. [wired.com]" -- Preston Padden, head of government relations for Walt Disney Corp.
      • Re:Fair Use (Score:5, Funny)

        by halcyon1234 (834388) <halcyon1234@hotmail.com> on Thursday August 30, 2007 @09:15AM (#20410357) Journal
        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: (Score:3, Interesting)

          by eric76 (679787)
          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 (Score:5, Funny)

          by MrNiceguy_KS (800771) on Thursday August 30, 2007 @10:19AM (#20411085)
          Wow. A court battle where the Chewbacca defense might actually be relevant! I think MY head is going to explode.
          • Re: (Score:3, Funny)

            by Anonymous Coward
            I suggest a new copyright defense strategy R2: Let the wookie win.
        • Re:Fair Use (Score:5, Funny)

          by jollyreaper (513215) on Thursday August 30, 2007 @10:28AM (#20411199)

          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.
        • 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.

      • Viacom used his video as part of a report that included commentary on it. That's fair use.

        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
        • Re: (Score:3, Informative)

          by cpt kangarooski (3773)
          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: (Score:3, Informative)

        by LordKronos (470910)

        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)

        by AusIV (950840) on Thursday August 30, 2007 @09:40AM (#20410619)

        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 (Score:5, Interesting)

          by Anonymous Brave Guy (457657) on Thursday August 30, 2007 @10:30AM (#20411233)

          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: (Score:3, Interesting)

          by nine-times (778537)

          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)

            by TubeSteak (669689) on Thursday August 30, 2007 @12:41PM (#20413019) Journal

            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: (Score:3, Interesting)

        by cfulmer (3166)
        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
      • Re:Fair Use (Score:4, Interesting)

        by mr_mischief (456295) on Thursday August 30, 2007 @10:35AM (#20411275) Journal

        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.
    • by mwvdlee (775178)
      So... who owns the copyright to Star Wars, from which the poster's clip uses material?
      • Exactly, this guy may not even have a copyright in his own work because it may be considered a derivative work of Star Wars. All he has to do though is get permission from Lucas. Good luck with that though. So...if he doesn't own the copyright then he can't really tell Viacom what to do.
    • by halcyon1234 (834388) <halcyon1234@hotmail.com> on Thursday August 30, 2007 @09:08AM (#20410279) Journal
      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: (Score:3, Funny)

        Imagine when things get crazy when you settle with yourself out of court for an "undisclosed amount."
      • Re: (Score:3, Funny)

        by MadJo (674225)
        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!
  • God knows they can afford it ... and bloody hell they deserve it! It'd be poetic justice if they had to pay up.
    • by blindd0t (855876)
      See, if you had this kid [youtube.com] standing at your side, they would have never made such a foolish move.
    • by Lumpy (12016)
      Screw that. Claim the same made up numbers they are.

      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."

    • Just because the topic poster allows others to use his video doesn't mean he's allowed to use theirs.

      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.
  • by LiquidCoooled (634315) on Thursday August 30, 2007 @08:50AM (#20410083) Homepage Journal
    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?
  • Pulled clip is... (Score:5, Informative)

    by Whiney Mac Fanboy (963289) * <whineymacfanboy@gmail.com> on Thursday August 30, 2007 @08:51AM (#20410089) Homepage Journal
    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).
    • Re: (Score:2, Funny)

      by tee1977 (1102725)
      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) 20
      • by gvc (167165) on Thursday August 30, 2007 @09:17AM (#20410377)
        Copyright notices have not been required in the U.S. since 1989 [copyright.gov].
      • Re: (Score:3, Informative)

        "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.


  • Most likely they just saw it on youtube and didn't think, and just used it assuming it was free for all because it was on youtube and used it in the show. Then, completely different section of the company found the posting of the show that included your clip on youtube, and got it taken down. Its pretty well know that companise aren't known for joined up thinking. If I were in that position I'd contact them,a sking if you can post it, and if you can't, sue their asses off for copyright violation.
    • Anyone working at a large media company, at least in programming, will have the you-use-it-you-pay-for-it mantra drilled so deep into their skulls they don't even need to think about it. It's the default assumption. They're the kind of people who watch a clip from a documentary being made, hear someone's cell ringing in the background with a song for a ringtone, and thinks "uh-oh, we'll have to track down the copyright holder and get a license for that song..." That's been my experience of the industry any
  • It's going to be a well-deserved win.
  • by saterdaies (842986) on Thursday August 30, 2007 @08:53AM (#20410115)
    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.
    • by Random832 (694525) on Thursday August 30, 2007 @10:21AM (#20411105)

      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).
      • by Abcd1234 (188840) on Thursday August 30, 2007 @10:35AM (#20411281) Homepage
        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 (Score:5, Insightful)

    by WPIDalamar (122110) on Thursday August 30, 2007 @08:53AM (#20410125) Homepage
    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.
    • by mattgreen (701203)
      Obviously, the last choice is the prudent one here, actually. If you think about it, #1 won't happen at all, #2 is a pain, and #3 is boring. The least this guy can do is buy himself some Internet popularity with the "all-information-except-GPL-based-information-want s-to-be-totally-free" crowd.

      Who can blame him?
    • I really doubt they can counter sue, you can't really copyright a clip that contains a breach of copyright itself.
      • Re: (Score:3, Insightful)

        by falcon5768 (629591)
        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 (Score:5, Insightful)

      by wonkavader (605434) on Thursday August 30, 2007 @09:51AM (#20410741)
      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.
  • 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.
  • Countersue (Score:3, Insightful)

    by Catiline (186878) <akrumbach@gmail.com> on Thursday August 30, 2007 @08:54AM (#20410139) Homepage Journal
    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 (Score:4, Insightful)

    by faloi (738831) on Thursday August 30, 2007 @08:54AM (#20410141)
    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.
    • IANAL, but from what I understand you retain the copyright for your content. By uploading it to YouTube, you basically give YouTube the right to use the material in any form that it wants (letting them, for example, stick your video thumbnail on its front page, marketing materials, etc. without asking you) but your work remains yours.
      • by Like2Byte (542992)

        IANAL, but from what I understand you retain the copyright for your content. By uploading it to YouTube, you basically give YouTube the right to use the material in any form that it wants (letting them, for example, stick your video thumbnail on its front page, marketing materials, etc. without asking you) but your work remains yours.

        Granted; but, that doesn't make it any less hypocritical.

    • Re:Depends (Score:5, Informative)

      by Aladrin (926209) on Thursday August 30, 2007 @08:59AM (#20410201)
      "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: (Score:3, Informative)

        by Aladrin (926209)
        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 wi
    • but the law (and the money) is probably on Viacom's side.

      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.

  • by IBBoard (1128019) on Thursday August 30, 2007 @08:56AM (#20410155) Homepage
    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.
  • by Jozxyqk (16657) on Thursday August 30, 2007 @08:56AM (#20410163)
    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.
  • by 140Mandak262Jamuna (970587) on Thursday August 30, 2007 @08:56AM (#20410165) Journal
    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?
  • by palladiate (1018086) <palladiate@gmail. c o m> on Thursday August 30, 2007 @08:58AM (#20410183)

    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: (Score:2, Insightful)

      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?

  • .. and go after them for copyright violation. Unless you specifically put your media under a Creative Commons license or something similar, I think you'd have a fair case for saying they've been using your work in a commercial, for-profit sense - and you should get royalties based on the number of times they've played it.

    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.
  • I'm just surprised that George Lucas hasn't filed a suit yet! ;-)
    • Re: (Score:3, Informative)

      by Binestar (28861)
      I'm just surprised that George Lucas hasn't filed a suit yet! ;-)

      Why is that? LucasFilms encourages [atomfilms.com] little films like this.
  • Hah! (Score:2, Interesting)

    by 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.
  • Maybe George Lucas is pissed somehow too.
  • by hey! (33014) on Thursday August 30, 2007 @09:24AM (#20410429) Homepage Journal
    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.
    • by TheKnightShift (1102767) on Thursday August 30, 2007 @09:45AM (#20410675) Homepage
      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.
  • by swillden (191260) * <shawn-ds@willden.org> on Thursday August 30, 2007 @09:32AM (#20410499) Homepage Journal

    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.

  • Trix (Score:3, Funny)

    by PortHaven (242123) on Thursday August 30, 2007 @09:48AM (#20410707) Homepage
    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.
  • by dpbsmith (263124) on Thursday August 30, 2007 @10:06AM (#20410925) Homepage
    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.
  • by Doc Ruby (173196) on Thursday August 30, 2007 @10:34AM (#20411271) Homepage Journal
    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.
  • by Torodung (31985) on Thursday August 30, 2007 @11:32AM (#20412017) Journal
    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 [starwars.com] haircut.

    • by TheKnightShift (1102767) on Thursday August 30, 2007 @11:50AM (#20412271) Homepage

      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 :-)

Get hold of portable property. -- Charles Dickens, "Great Expectations"