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Viacom Says User Infringed His Own Copyright

kdawson posted more than 7 years ago | from the catch-44 dept.

Media 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!"

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LITIGATE! (5, Funny)

Anonymous Coward | more than 7 years ago | (#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 (4, Interesting)

TheGreek (2403) | more than 7 years ago | (#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 (5, Interesting)

LiquidCoooled (634315) | more than 7 years ago | (#20410177)

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

Re:Fair Use (5, Informative)

Anonymous Coward | more than 7 years ago | (#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:Fair Use (0, Redundant)

tomstdenis (446163) | more than 7 years ago | (#20410211)

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.

Re:Fair Use (1, Insightful)

TheGreek (2403) | more than 7 years ago | (#20410291)

Fair use is limited to reasonable excerpts.
Are you certain that Viacom didn't use reasonable excerpts? I know I'm not, since I haven't seen the video.

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:Fair Use (2, Interesting)

hedwards (940851) | more than 7 years ago | (#20410479)

I'm pretty sure that they didn't use excerpts, but used more or less the entire thing. Besides the show isn't a news cast or similar journalistic endeavor.

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 (4, Informative)

infonography (566403) | more than 7 years ago | (#20410625)

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 (4, Interesting)

tarogue (84626) | more than 7 years ago | (#20410243)

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

Re:Fair Use (1)

morgan_greywolf (835522) | more than 7 years ago | (#20410343)

Viacom used his video as part of a report that included commentary on it. That's fair use.
So I take it I can take some of your copyrighted source code, toss it into a Slashdot comment, and put "Wow, nice code!" at the bottom and you won't sue me, right?

Fair use for commentary purposes includes using brief excerpts of copyrighted material for commentary. Exceptions might exist for very short works, but even that is questionable. So it might be okay for me to post, say, one small loop in your program and make a comment about that, but I can't post the whole source file.

Re:Fair Use (-1, Flamebait)

oh_my_080980980 (773867) | more than 7 years ago | (#20410347)


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. The only case of "fair use" on record is an owner of an LP is allowed to make a cassette tape copy of that work; this does not extend to CDs or DVDs.

What are you 12.

Re:Fair Use (5, Informative)

TheGreek (2403) | more than 7 years ago | (#20410391)

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? (4, Funny)

Organic Brain Damage (863655) | more than 7 years ago | (#20410555)

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:Fair Use (1)

mdwh2 (535323) | more than 7 years ago | (#20410563)

Cool, so all he has to do is bung some commentary in the YouTube page, and he'll be fine. Whilst he's at it, he can do the same when he uploads the latest movie. Obviously the MPAA will be fine with that, because it's fair use.

Re:Fair Use (2, Interesting)

MartinG (52587) | more than 7 years ago | (#20410565)

Actually, he didn't even say it was copyright infringement. He said it was "theft pure and simple" which is even more wrong, and that's saying something.

Re:Fair Use (1)

Duffy13 (1135411) | more than 7 years ago | (#20410573)

Problem is you guys are arguing the wrong point here. The point that should be argued here is if a show on VH1 thats supposed to be funny and entertaining counts as "commentary"? Followed by: are they "profiting" from your work without substantial benefit to yourself. Though in this case the latter I think is much weaker.

Re:Fair Use (1)

ZeroFactorial (1025676) | more than 7 years ago | (#20410605)

So we can all distribute pirated software as long as we modify it to include a few criticisms? Sweet!

Re:Fair Use (5, Funny)

halcyon1234 (834388) | more than 7 years ago | (#20410357)

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 (2, Interesting)

eric76 (679787) | more than 7 years ago | (#20410427)

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 (1)

whisper_jeff (680366) | more than 7 years ago | (#20410381)

Perhaps you'd like to educate yourself on Fair Use a bit more.

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--
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.


His use of the clip was absolutely Fair Use. Viacom's use of the clip absolutely was not Fair Use. Hint: The fact that Viacom MADE MONEY from the use of the clip is a strong indicator that it was not Fair Use.

Re:Fair Use (1, Troll)

TheGreek (2403) | more than 7 years ago | (#20410453)

His use of the clip was absolutely Fair Use. Viacom's use of the clip absolutely was not Fair Use. Hint: The fact that Viacom MADE MONEY from the use of the clip is a strong indicator that it was not Fair Use.
The words are there, but it's like you don't even read them.

for purposes such as criticism, comment, news reporting
Viacom was reporting the news and providing commentary on the advertisement. They made money on it. Great. News gathering and dissemination is a for-profit enterprise! Stop the goddamned presses!

(4) the effect of the use upon the potential market for or value of the copyrighted work
Tell me how Viacom's coverage of his campaign ad diminishes the ad's potential market or devalues it.

Re:Fair Use (1)

poot_rootbeer (188613) | more than 7 years ago | (#20410409)

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 that his commercial is a derivative work of "Star Wars". His best course of action is probably to complain loudly and then get on with his life.

Political commercial (1)

MontyApollo (849862) | more than 7 years ago | (#20410559)

The fact that it was a political commercial probably gives Viacom even extra fair use. Political messages are particularly fair game at being copied and analyzed.

Re:Fair Use (2, Informative)

LordKronos (470910) | more than 7 years ago | (#20410617)

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 of that corresponding commentary (unless he posted commentary in the comments too...no way to know now, since the page is gone).

Re:Fair Use (5, Insightful)

AusIV (950840) | more than 7 years ago | (#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:LITIGATE! (1)

mwvdlee (775178) | more than 7 years ago | (#20410265)

So... who owns the copyright to Star Wars, from which the poster's clip uses material?

Re:LITIGATE! (1)

DustyShadow (691635) | more than 7 years ago | (#20410323)

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.

Re:LITIGATE! (1)

mdwh2 (535323) | more than 7 years ago | (#20410611)

So...if he doesn't own the copyright then he can't really tell Viacom what to do.

It's not that he wants to tell Viacom what to do; Viacom are telling him what to do.

Re:LITIGATE! (4, Informative)

falcon5768 (629591) | more than 7 years ago | (#20410649)

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! (1)

Gription (1006467) | more than 7 years ago | (#20410683)

You can't copyright a genre. To be a derivative work that is an infringement you need to make a fairly direct copy of some portion of the original work. I don't think you could say this about this example.

Additionally satire is a protected use of copyrighted material which could easily be said about this video. I don't think anyone at Lucas Arts would think any litigation against this work would be fruitful.

The real deal is: Yes, Viacom is being hypocritical. Yes, Viacom is most certainly in the wrong to take his complete work without permission. Yes, Viacom tends to be a big lumbering bully. But two wrongs don't make a right (three rights make a left) so his copying the whole surrounding portion of the news broadcast has the serious issue that any theory allowing him to use it requires that he prove they infringed him first and that requires that he go to court. Nothing here is going to fly.

The problem is unless you are loaded with large denominations of lawyers there isn't anything you can do with it other then post on the internet and try to make a large public stink about it. You aren't going to be able to get this on ANY news channel though because they are all owned by large media companies.

Re:LITIGATE! (4, Funny)

halcyon1234 (834388) | more than 7 years ago | (#20410279)

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:LITIGATE! (1)

icepick72 (834363) | more than 7 years ago | (#20410561)

I know the guy. Trust me, for 30% you won't be able to buy a free lunch.

Sue them for millions (1)

funkdancer (582069) | more than 7 years ago | (#20410071)

God knows they can afford it ... and bloody hell they deserve it! It'd be poetic justice if they had to pay up.

Re:Sue them for millions (1)

blindd0t (855876) | more than 7 years ago | (#20410107)

See, if you had this kid [youtube.com] standing at your side, they would have never made such a foolish move.

Re:Sue them for millions (0)

Anonymous Coward | more than 7 years ago | (#20410171)

Didn't you say the VH1 commentary was pretty hilarious? So don't you think it has some value, or at least is something Viacom has a right to protect?

So you copied and distribute something that doesn't belong to you (the commentary) along with something that does (your film). The owner gets mad. What's the issue here? Can't you just post your film alone and avoid infringing on other people's rights?

Re:Sue them for millions (1)

bstempi (844043) | more than 7 years ago | (#20410333)

Lest you forget that there would be nothing to comment on were it not for his video in the first place. Viacom copied and distributed something that didn't belong to them. For all of the money they made off of that video, you'd figure that the least they can do is to let him repost the clip. After all, it doesn't cost Viacom anything.

Re:Sue them for millions (1)

Lumpy (12016) | more than 7 years ago | (#20410205)

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."

The very LEAST think you should do.. (1)

mwvdlee (775178) | more than 7 years ago | (#20410217)

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.

incredible (1, Insightful)

Anonymous Coward | more than 7 years ago | (#20410081)

incredible what the media conglomerates think they can get away with! steal content from the little guy then punish him when he steals it back!

He should counterclaim (4, Funny)

LiquidCoooled (634315) | more than 7 years ago | (#20410083)

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 (1, Interesting)

Anonymous Coward | more than 7 years ago | (#20410157)

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?
Assuming that everything this guy is saying is true, he has a great opportunity to make Viacom pay and make them pay hard. And I hope that Chris does because that's the only way Viacom is going to learn its lesson. If I were Chris, I would file a lawsuit that throws their numbers right back at them to the tune of billions and let their lawyers deal with it.

This could be a case that turns around the current situation.

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.

Pulled clip is... (4, Informative)

Whiney Mac Fanboy (963289) | more than 7 years ago | (#20410089)

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:Pulled clip is... (2, Funny)

tee1977 (1102725) | more than 7 years ago | (#20410253)

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) 2007 by tee1977 All Rights Reserved
(Slashdot.org is free to use it as it sees fit, except to sell it to Viacom.)

About 20 years out of date (4, Informative)

gvc (167165) | more than 7 years ago | (#20410377)

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

There is only one thing you can do (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#20410093)

Take your pants off and masturbate like there is no tommorow.

Live every week like it's shark week.

Contact Them (1)

JamesRose (1062530) | more than 7 years ago | (#20410101)

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.

Re:Contact Them (1)

fastest fascist (1086001) | more than 7 years ago | (#20410245)

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 anyway.

Be Silent, Citizen! (0)

Anonymous Coward | more than 7 years ago | (#20410105)

We give the USA the economy not you, therefore we own all intellectual property. Besides. You are incapable original ideas and thought. Everything you have you merely rent from *US*. You cannot produce anything without our consent, so anything you make we already owned to begin with.

-- This is a tounge and cheek Comment.

Sue them to hell and back. (1)

imbaczek (690596) | more than 7 years ago | (#20410109)

It's going to be a well-deserved win.

There's this old saying... (0)

Anonymous Coward | more than 7 years ago | (#20410113)

Two wrongs don't make a right.

Re:There's this old saying... (0)

Anonymous Coward | more than 7 years ago | (#20410367)

No kidding. Once I heard he ran for the school board I knew it was all going downhill from there.

Two infringements make a right? (3, Insightful)

saterdaies (842986) | more than 7 years ago | (#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.

Re:Two infringements make a right? (0)

Anonymous Coward | more than 7 years ago | (#20410653)

Next time, he should simply present the clip as proof that Viacom used his work on the show. That would make his clip of their show fair use, wouldn't it?

Recourse (4, Insightful)

WPIDalamar (122110) | more than 7 years ago | (#20410125)

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 (1)

mattgreen (701203) | more than 7 years ago | (#20410335)

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?

Re:Recourse (1)

Svartalf (2997) | more than 7 years ago | (#20410551)

Funny that, it looks like he chose the fourth one already...

Re:Recourse (1)

JamesRose (1062530) | more than 7 years ago | (#20410417)

I really doubt they can counter sue, you can't really copyright a clip that contains a breach of copyright itself.

Re:Recourse (1)

WPIDalamar (122110) | more than 7 years ago | (#20410471)

Viacom will claim fair use, probably rightfully so since it was a commentary on the video.

He probably can't claim fair use since he just posted a segment of the episode. The fact that he knew about it and didn't do anything gives further weight behind Viacom's fair use belief.

Re:Recourse (2, Insightful)

falcon5768 (629591) | more than 7 years ago | (#20410475)

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 (1)

mdozturk (973065) | more than 7 years ago | (#20410595)

And also:

- Repost with commentary

Never give those scumbags an inch (2, Insightful)

Rude Turnip (49495) | more than 7 years ago | (#20410131)

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.

Sure them (0, Redundant)

mrsev (664367) | more than 7 years ago | (#20410135)

.. and sue them good!

Countersue (2, Insightful)

Catiline (186878) | more than 7 years ago | (#20410139)

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 (3, Insightful)

faloi (738831) | more than 7 years ago | (#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.

Re:Depends (1)

Rob T Firefly (844560) | more than 7 years ago | (#20410197)

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.

Re:Depends (1)

Like2Byte (542992) | more than 7 years ago | (#20410223)

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 (5, Informative)

Aladrin (926209) | more than 7 years ago | (#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:Depends (2, Informative)

Aladrin (926209) | more than 7 years ago | (#20410233)

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 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. "

Re:Depends (1)

Alain Williams (2972) | more than 7 years ago | (#20410275)

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.

Re:Depends (0)

Anonymous Coward | more than 7 years ago | (#20410431)

That is why the legal system sucks.

Correction: This is why our American legal system sucks.

Re:Depends (1)

Alain Williams (2972) | more than 7 years ago | (#20410483)

Actually I am a Brit -- it works (or doesn't - depending on your point of view) the same way here.

No. (1)

The Iso (1088207) | more than 7 years ago | (#20410293)

No. Paragraph 6C in the TOS:

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.
It may be that Viacom licensed Mr. Knight's video from YouTube.

Re:No. (1)

falcon5768 (629591) | more than 7 years ago | (#20410507)

doubtful, since Google wants no part of anything Viacom does atm, you know with that big huge lawsuit and counter-suit going on right now.

Find a good lawyer... (1)

Anonymous Coward | more than 7 years ago | (#20410153)

who is prepared to work on a no win no fee basis. A small percentage of a huge pile of money is still a lot of money. If your case is strong lawyers should be salivating over it.

Unfortunately, they're technically correct (4, Insightful)

IBBoard (1128019) | more than 7 years ago | (#20410155)

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 (5, Funny)

Jozxyqk (16657) | more than 7 years ago | (#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.

The links seems to be working (2, Insightful)

140Mandak262Jamuna (970587) | more than 7 years ago | (#20410165)

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?

Re:The links seems to be working (0)

Anonymous Coward | more than 7 years ago | (#20410235)

That link is the original video. The one that got pulled was a clip of the video being shown on TV.

I *do* care about this... REALLY!!! (-1, Troll)

Anonymous Coward | more than 7 years ago | (#20410167)

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!

Hell, yes, good that I visit Slashdot at least monthly. Don't know how much time I would have wasted without the knowledge of such precious articles.

I feel sorry for the damage this persons YouTube resence might have suffered and wish the best for him and his relatives.

I might even pray for them because I have nothing better to do.

You fail to understand one thing (5, Interesting)

palladiate (1018086) | more than 7 years ago | (#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:You fail to understand one thing (2, Insightful)

Double Entendre (1123719) | more than 7 years ago | (#20410325)

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?

I didn't say it's legal (1)

palladiate (1018086) | more than 7 years ago | (#20410521)

I'm not implying it's legal. I'm saying at least one big content company views copyright that way.

If you or I were to show a large chunk/all of a Viacom TV show with our own commentary, you can beat your sweet ass we would be sued if we didn't get permission first. But, if Viacom could show and mock our home-rolled 5-minute youTube video for their latest "Web's Dumbest Geeks" episode, they certainly would without our permission.

Viacom certainly doesn't care about copyright. Viacom cares about protecting their revenues. If copyright can help them do that they'll use it. If it gets in their way, they'll certainly ignore it. And if they can selectively interpret fair use (we can use a full copyrighted work of yours with commentary, but you can't do it to us), they certainly will.

Re:You fail to understand one thing (1)

Svartalf (2997) | more than 7 years ago | (#20410643)

It's not that it's a viable legal theory- it's how the media corporations actually think these days. If you're not monetizing it it's fair game. If it's not theirs and they can steal it however they can, they will. Yes, the media companies are paranoid about the infringement of other people's IP, but if they can't get caught or the content creator is not in a position to defend themselves because of funds... You can see it in their actions.

"Intellectual" Property is a rich man's game. Copyrights are less so than Patents, but in the end, they, being all three forms of "protected" intellectual property, are only worth what you're able to field in the form of a legal defense/offense on someone to protect it.

Re:You fail to understand one thing (1)

kkiller (945601) | more than 7 years ago | (#20410399)

The problems B3ta [b3ta.com] posters have had with Nuts and Zoo magazines [b3ta.com] spring to mind. Hey, these guys aren't making money from their amusing images, so its OK if we publish them and fail to credit you or even ask first.

So follow in their footsteps.... (1)

trawg (308495) | more than 7 years ago | (#20410195)

.. 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.

Star Wars (1)

Stooshie (993666) | more than 7 years ago | (#20410241)

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

Re:Star Wars (2, Informative)

Binestar (28861) | more than 7 years ago | (#20410401)

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

Why is that? LucasFilms encourages [atomfilms.com] little films like this.

Re:Star Wars (1, Funny)

TheRaven64 (641858) | more than 7 years ago | (#20410537)

Exactly. And besides, next to that ad the prequel trilogy actually looks good...

What do you call 1000 dead lawyers? (0, Redundant)

Loosifur (954968) | more than 7 years ago | (#20410283)

"Hey, your corporate media colossus is in my DIY video!" "Your DIY video's in my corporate media colossus!" I'd love to meet the crack legal team that decided to pursue this. Seriously, you've got to be a pretty secure person to sue someone for posting changes you made to his content and not be worried about winding up in the lowest level of hell or reincarnating as a dung beetle or something. I don't know what the fine print is for YouTube, and I'm sure that they have a case, but that's pretty far from the spirit of the thing, I'd say.

Hah! (2, Interesting)

Anonymous Coward | more than 7 years ago | (#20410287)

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.

Does the Star Wars theme help? (1)

bl8n8r (649187) | more than 7 years ago | (#20410389)

Maybe George Lucas is pissed somehow too.

An interesting wrinkle (4, Interesting)

hey! (33014) | more than 7 years ago | (#20410429)

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.

I've never worried that I've been "damaged" ... (4, Informative)

TheKnightShift (1102767) | more than 7 years ago | (#20410675)

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.

Derivative work, not commentary (1)

gvc (167165) | more than 7 years ago | (#20410447)

As far as I'm concerned, the clip incorporates the original ad into a new derivative work, with the voice and video-overs. As such, it is *not* fair use of the original ad, and is *is* copyrightable in its own right. But the copyright holder in the original ad has a substantial stake in that copyright.

Right or wrong, my theory is irrelevant, because few individuals have the resources to do battle with corporations over copyright.

Both actions were illegal (4, Insightful)

swillden (191260) | more than 7 years ago | (#20410499)

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.

ow (1)

hoto0301 (811128) | more than 7 years ago | (#20410501)

ow, my brain.

Oops? (0)

Anonymous Coward | more than 7 years ago | (#20410539)

Have you wrecked your own case by publicly stating "I didn't mind it if they did"?

Permission given (1)

nurb432 (527695) | more than 7 years ago | (#20410571)

Once you posted it to youtube, you gave them permission to reuse.

Wrong. (0)

Anonymous Coward | more than 7 years ago | (#20410589)

The commentary on your clip renders their use of it fair use. You have no actionable claim against them.

Your redistribution of that commentary is a mere copy; you are infringing on their copyright.

Re:Wrong. (2, Informative)

Dunbal (464142) | more than 7 years ago | (#20410647)

The commentary on your clip renders their use of it fair use. You have no actionable claim against them.

      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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