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!"
incredible (Score:1, Insightful)
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.
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.
Never give those scumbags an inch (Score:2, Insightful)
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.
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.
The links seems to be working (Score:3, Insightful)
Re:Fair Use (Score:1, Insightful)
He does, however, seem to admit to having put the VH1 segment, in its entirety, on YouTube. He's not allowed to infringe on somebody else's copywritten work, even if the work is derived from his own under the doctrine of fair use.
Re:You fail to understand one thing (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?
Comment removed (Score:3, Insightful)
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.
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: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.
Re:Fair Use (Score:3, Insightful)
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 probably exercising fair use when he posts a segment (not the whole show) and makes relevent commentary on it.
And to get more directly to the topic at hand, this guy in no way violated anyone's copyright, yet he was slapped with a violation notice, and it seem that the big boys get to do that with impunity these days (whether they are correct or not).
Privateering the Public Domain (Score:3, Insightful)
Re:Fair Use (Score:2, Insightful)
This is not news. News is when you discuss politics or something similar. Viacom was not even using it as a review/opinion. You can't show the entire thing and all it a review/opinion on it.
What Viacom was doing was using it for ENTERTAINMENT and attempting to CHEAT the copyright rules using a criticsim. Typically Criticism defenses would require that they do NOT show the entire thing, or at the least show it in an educational environment.
His market was EXACTLY the same as their market: Entertainment.
You can NOT copy an ENTIRE thing made for entertainment and then claim the fact that you are commenting on it allow you to use it for entertainment purposes.
For Viacom to not interefere with his market value they would have to have used it in a non-entertainment manner. For example, in a school, or a workshop about how to make a funny video.
Viacom did NOT satisfy the fair use rules. They could have done so any of 2 ways:
1. Not provide the entire thing, but instead only include a small portion(typically 5%).
2. Not use it for the same market (Entertainment)
Re:Making money is not the sole criteria (Score:2, Insightful)
But I would suggest that how much money they may have made is irrelevant. They air programs with the goal of making money, whether they succeed in that goal or not. What's important is the fact that Viacom tried to make money using a clip that they didn't get permission to use.
Re:Never give those scumbags an inch (Score:3, Insightful)
I always thought "business" was about me wanting something
that you had, and you wanting something I had, and we two
coming mutually together on trading these things so that
we both had things we valued more than what we had previously.
You know, a win-win situation. No exploitation involved.
I know, how quaint.
Re: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.
Re:Fair Use (Score:2, Insightful)
Re:Fair Use (Score:3, Insightful)
"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.
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Re:Fair Use (Score:2, Insightful)
Does sublicenseable and transferable mean that they can license it to third parties?
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.
Re:Never give those scumbags an inch (Score:3, Insightful)
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?
Re:Fair Use (Score:3, Insightful)
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.