UPDATE 09-12-2007 12:29 am EST: YouTube has restored the clip
“Chutzpah” is a Yiddish word meaning “unbelievable gall or audacity”. An example of it would be the story of the kid who murders both of his parents, then throws himself on the mercy of the court on the grounds that he’s an orphan.
That’s chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created.
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!
The clip in question was pulled by YouTube earlier this morning, at Viacom’s insistence.
Last fall, as part of my campaign for Rockingham County Board of Education, I produced three commercials that ran on local television. The first of them – which I simply dubbed “Christopher Knight for School Board TV Commercial #1” – was hosted on YouTube the same evening that the ad started running on WGSR in Reidsville. You can watch it at http://youtube.com/watch?v=nLi5B0Iefsk.
Well, the concept of a candidate for Board of Education pitching himself by using the Death Star to blow up a little red schoolhouse is admittedly unusual. The YouTube clip got around quite a bit: as of this writing it’s received over sixty-six thousand views. I put it and the other two ads on YouTube so that I could post them on this blog (because I was trying to chronicle everything that happened during the course of my campaign). And I’d always intended to keep them up after the election too, in case anyone else might find and enjoy watching them. Heck, I’ve always liked to think that maybe someday, others might see how I was a candidate and feel led to run for office themselves!
A month and a half ago some friends let me know that the cable network VH1 was spotlighting the commercial on their show Web Junk 2.0, in an edition titled “Animals & Other Crap”.
VH1 took the video that I had created and hosted on YouTube, and made it into a segment of Web Junk 2.0. Without my originally-created content to work with, VH1 would not have had this segment at all. They based this segment of Web Junk 2.0 entirely on the fruit of my own labor.
I got to catch the episode and was laughing pretty hard not just at host Aries Spears’s witty commentary about my commercial, but that VH1 had found the commercial worthy of sharing with such a vast audience.
Please bear in mind that at no time prior to the broadcast of this show was I contacted by VH1 or its parent company Viacom. At this time, I’ve received no communication from Viacom whatsoever about this.
I was quite aware that they were using my own not-for-profit work for commercial purposes and that they should have contacted me. But I didn’t really care that they were doing that, either. It was just nice to see something that I had worked on getting seen and appreciated by a lot more people than what I had intended for a local audience. And I was glad that Melody Hallman Daniel, the voice-over actress in the spot, received some widespread notice of her considerable talent.
I was so proud that my commercial had been highlighted on Web Junk 2.0 that I posted the segment featuring it on YouTube so that I could put it on this blog, just like I’d posted the original commercial.
Did I think about the issue of copyright when I did that? Of course I did! But if this wasn’t a matter of Fair Use, then I don’t know how anything else would qualify it as such either. I made the original video, VH1 used it without my permission and I didn’t particularly have a problem with that. I thought that they would have readily understood that were it not for my creativity and effort, that this edition of Web Junk 2.0 would have had to find some material elsewhere.
And then this morning the following e-mail arrives from YouTube:
Dear Member:
This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing:Web Junk 2.0 on VH1 features my school board commercial!:
http://www.youtube.com/watch?v=ddyVQwpByugPlease Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the Copyright Tips guide.
If you elect to send us a counter notice, please go to our Help Center to access the instructions.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Sincerely,
YouTube, Inc.
So Viacom took a video that I had made for non-profit purposes and without trying to acquire my permission, used it in a for-profit broadcast. And then when I made a YouTube clip of what they did with my material, they charged me with copyright infringement and had YouTube pull the clip.
Folks, this is, as we say down here in the south, “bass-ackwards”.
I have written to YouTube’s division of copyright enforcement, telling them that the VH1 clip is derived from my own work and that I should be entitled to use it as such. So far I haven’t heard anything back from them. After reading that last part of the initial e-mail that they sent me, I’m wondering how apt they might be to use the Digital Millennium Copyright Act to wipe out the accounts of anyone who even raises such a fuss about something like this, no matter how well-grounded it is.
What does this mean for independent producers of content, if material they create can be co-opted by a giant corporation without permission or apology or compensation? When in fact, said corporations can take punitive action against you for using material that you created on your own?
That’s what’s happening to me right now, folks. Viacom is penalizing me for using my own original material, which they used without permission to begin with.
I would really like to fight this as hard as I can. Unfortunately at the moment I lack the time and resources to do this on my own. I am also, admittedly, not an attorney. There’s a good bit of knowledge of copyright law floating around in my gray matter, but it’s not nearly enough to mount the challenge that I would like to levy against Viacom for doing this.
I want to publicly declare this: that I am not out for any money. Not a single penny. All I want is for the clip to be restored to its original address on YouTube. And I want it to be established that other creators of content have a right under Fair Use to show how their works are being appreciated in the wider world. I just want the rest of us who aren’t affiliated with corporate media to have as much right to use our own work as “the big boys” enjoy for theirs.
Any inquiries or suggestions or anything else pertaining to the matter can be directed to me at theknightshift@gmail.com.
EDIT 8:22 p.m. EST: Want to see the forbidden video clip of Web Junk 2.0 using my TV commercial? Mash down here, grasshoppah! Special thanks to Richard Moore for hosting it!
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My guess is that they used your material as legitimate “journalistic” material (i.e., they were quoting it to produce a journalistic piece)
The VH1 clip is clearly a derivative work from your own. You have every right to use the segment as its original creator.
You might want to take a look at the Do-It-Yourself Counter Notification Letter page.
It’s funny how they put the “I paid for this ad” at the end, seemed a little rude, also you may want to put some creative commons disclaimers on your site or something.
The whole thing just seems rude on Viacoms part, surely when someone found your clip on youtube they would have seen your other OG clips, maybe you could re-upload it with your own derivative commentary over the top, cut it up a little.
Or contact Viacom or something.
I’m pretty sure any judge will side wih reason in this case. I mean, you can only apply the letter of the law so far without breaking the spirit of the law, and this is why judges get maneuvering room in handing down sentences.
I’d hate to see this happen to my own intellectual property (I just released a novel under a Creative Commons license).
On the other hand, with corporations often the left hand has no clue what the right hand does. Perhaps once they realize that you own IP which went into the episode you hosted, they will back down.
—
The Banjo Players Must Die
Listen to me pal sue them for 100 million in the court, there are a lot of people who can help you can end up a rich man and teach them a lesson. and and and for the advice you keep 99 and give me 1 million, ok deal or not……ha ha ha jus kiddin
they take your commercial from youTube or TV broadcast?
Call the EFF. This is the kinda thing they handle. Personally, I would sue the hell out of them and make it very public.
http://youtube.com/t/terms
also in the DCMA – you can sue for an illegal takedown. You can point this out to Google.
Hello!
I just commented on this on Groklaw, but I’ll repeat it here (for your convenience).
Having now seen an allegedly infringing copy of the segment of the show in question, I gather that the story’s basically as follows.
First, you made your commercial, and put it up on YouTube. Then, Viacom included it in a show, with commentary (suggesting fair use), where basically they were saying, “Hey! Look at this guy’s commercial!” And then you did likewise, copying that segment (just as they copied your commercial), where you said, “Hey! Look at this show’s segment showing my commercial!” And they’re accusing you of copyright infringement?
I’m no lawyer, but one idea (to ask a real lawyer about) is the following. Make another video in which you:-
1. describe this silly situation;
2. show their segment, with your own commentary added (on top or interspersed) – fair use;
3. put forward the obvious argument in your own defence;
4. put it up on YouTube;
5. and bring Viacom’s attention to it.
Oh, and make sure you finish the new video with a rhetorical challenge to sue you, asking them to consider how the court would regard your defence argument in that video. The point, after all, would be to have the video such that if it were to be presented as evidence in a copyright infringement lawsuit, the video itself would point out the blatant hypocrisy of Viacom’s actions to the court 🙂 (Perhaps cheeky, but you could include comments in the video actually addressed to the judge. “Your Honor, it’s clear from Viacom’s hypocrisy that they either have unclean hands, or must agree with my fair use defence…”)
It would then be interesting to see how they respond. If, of course, the new video gets pulled, you could just make another, using the pulled video, but adding some extra stuff to do with that video getting pulled.
But, as I say, I’m not a lawyer.
Please submit this story to the fair use co-allition started by Google and other tech companies.
I forget the name and I don’t have a link since I’m commenting from my blackberry.
I think you should sue the crap out of them…. You’d be teaching them a lesson, a lesson that says “ok. need to pay original owners, and/or give them rights to our usage of their product.”
plus you’d take a bunch of their money, they’d do their research the next time they wanted to hit someone with copyright infringment.
I watch your copyright infringed video and your Ron Paul video. If this is all it takes to be an “independent filmmaker” then I’m a pornstar!
REMOVE THE DAMNED BLINK TAGS! I want to pass this URL around but that damned blinking is distracting as hell.
hey, just wanted to let you know.. saw you on reddit, went to subscribe to your feed, and then i realized you publish partial feeds. so i unsubscribed and i’ll probably never read another word you write. partial feeds are the devil, dude.
Wow, this is an incredible story.
I can’t believe Viacom did this, and I hope that you will charge back against them. They have no rights over your IP, and make them know about it.
They wanna use DMCA for their profit, let’s use it for their demise. 😀
Great post , but why realy you have so poor design of your blog if you are designer ?
Your next video (should they consider playing it online again) should say that the video is approved by you FOR YOU, and NOT for Viacom unless they contact me first! 🙂
Counter-sue the pants off of them. This is a corporation that has made itself not on its own merits or ingenuity, but by suing others for patent, copyright, and trademark infringement. Counter-sue their asses
What about the other YouTube segments that his show aired. Is there a class action suit from you and the other content producers against Viacom, showing mass abuse of copyright?
i have seen youtube content used all over television. i am sure there some kind of fine print on youtube’s site that says they can liscence anything uploaded. i do believe in fair use, but if this loophole exists it may save viacom if you were to take legal action. is it right and fair? no.
I would contact EFF or the ACLU to see whether they would assist or lead in a legal battle. Maybe contact Groklaw too.
Funny story, but you are being overdramatic. Send a DMCA counter-claim to Youtube. Google gives:
http://www.midcocomm.com/CustomerService/Policies/DMCACounterClaim/
http://www.ucmo.edu/dmca/counter.html
as help procedures, and Youtube tells you the help section of their websites explains you how to do it.
Youre not in it for the money?
So?
Sue them and the donate it to charity…you will feel good, build up karma points and even more positive press.
Milk this baby, I dont know anyone who is against you, this is pretty clear.
Hate to break it to you — but you assented to YouTube’s sublicensing of your clip to Viacom when you agreed to their TOS (emphasis added):
“However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.”
You granted YouTube a license to prepare derivative works. YouTube may have sublicensed to Viacom — and they created the derivative work. While they don’t own the original copyright, they do own the copyright in the derivative work because you expressly authorized it — and perversely, they may be within their legal rights to send you a takedown notice.
If possible, always read the terms before you sign (or click) your rights away.
I say bring suit against Viacom for compensation of the use of your commercial. In the suit state that your youtube video ran for so many minutes in a half hour(?) show and you require that percentage of profit that Viacom made from cable providers, corporate commercials, and any other revenue that may have been received by Viacom during the airing of that episode, as well as future episodes. They need to know that they are not exempt from the Digital Millennium Copy Right Act! This could be a great way to fund that next election term!
I agree that “fair use” protects your right to post the segment featuring your own work … but your contention that Viacom is playing the hypocrite here is offbase.
The company needn’t have contacted you to include your work in its story. You posted the video on a site that lets anyone, including Viacom, use it without contact you. That’s the point of video-sharing sites like YouTube. If you don’t want people repackaging and using your content without permission, don’t post it on a site that lets them do so.
We don’t know what rights Viacom had to make a derivative work…did they contact YouTube and get a license to use the work?
In any case, even if ViaCom has such a license, I think there is a good element of hypocrisy involved.
I think that raising this issue publicly and possibly in court would be a good thing. Most people using YouTube aren’t lawyers and don’t understand the rights they are giving up.
So you copyrighted this material when you made these advertisements?
Did you register them for fair use?
Publishing the material (in this case airing the ads on television) does not automatically establish copyright.
Television shows (on conglomerate owned stations) are always copyrighted before publication.
If you had copyrighted your matierial, then why would you place it on the web?
I hope you learn a lesson in copyright from this at least…
Of note, the terms on YouTube’s site state the following. It is clear that Viacom’s use was NOT of a personal nature.
Terms
Section 5 “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.”
B. You may access User Submissions solely:
* for your information and personal use;
* as intended through the normal functionality of the YouTube Service; and
* for Streaming.
There is some question as to whether YouTube had the right to license content. That appears to be the agreement.
So what I would do is contact YouTube or their parent google. And request an inquiry as to whether your video was licensed by Viacom.
If it was licensed, the case may be hard. But if it was NOT licensed from YouTube. Than you probably have a good case.
If they argue that their mere use of commentary made it fair use.
I’d then post a number of Viacom videos with “commentary” about the video. Perhaps a text bar underneath making the comments. Thus you could argue that such commentated videos of theirs fall into fair use. And that you will be launching a website called “Video Commentary” that features all of Viacom’s videos with commentaries.
Viacom was built on lawsuits and copyright abuse.
Their hypocrisy doesn’t matter as they are usually right in assuming that punks like you won’t have the resources to fight them.
Question No 1: You aren’t a jew right? I mean the discrimination clearly proves that :)- I was unsure after seeing that Yiddish quote
Q 2: You go man..go kick their arses to Baltimore and Justin Timberlake video-shoots.
Enough of the lawsuits for now. Here is what you should do. Make a video of yourself watching the video from VH1 on TV. Add in a few comments about how ridiculous Viacom’s claim is, but do not tread into the territory of slander.
Next post this video on YouTube and promote it through all the typical “rant” sites del.icio.us, slashdot, etc.
Next write a book about the whole experience.
The submission terms on Youtube grant them a NONEXCLUSIVE license, which means that copyright ownership is not transferred (even exclusive licenses don’t necessarily mean copyright ownership gets transferred, but that’s not applicable since that’s not Youtube’s policy). So even if Viacom was legally allowed to copy the stuff off Youtube without asking for permission from the original author, they had _NO_ right to request that the original author’s material be taken down because they never held the copyright on it in the first place.
forget about YouTube, they are doing the right thing.
focus entirely on Viacom, you need to bring up the point that they have now profited off your content. this is perfect grounds for a case. get the EFF involved, and you should probably ping Lawrence Lessig on it too…
What does “I mean the discrimination clearly proves that [you’re not Jewish]” mean?
Well, here is it is from a copyright perspective as I understand it.
When you signed up to an account with Youtube you agreed to their terms of use. Namely, in 6.c. you gave them a license to anything you post:
“… 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…”
So, what does this mean? It means you own the work and Youtube (that is Google) has a license from you to use it pretty much as they see fit, including the option to sublicense it to Viacom. Given the state of relations between Viacom and Google, it is not likely, IMHO, that Viacom created a derivative work of your work without a license from Youtube/Googe to do so. However, it’s certainly possible.
Whether or not Viacom has a sublicense from Google, your ownership of the original work does not give you any ownership of the derivative work. You can just bar them from using the original in the derivative. Unless they have a license to it (which seems likely), in which case, they own the derivative and you don’t and can’t stop them from using it.
Now you do have the ability under the terms you agreed to to cancel the license you gave them by deleting the videos from the site. So, if you do that, Viacom would have no license to create a derivate and you could bar them from using it. Unfortunately, it still does not give you ownership or a license to use their work (even if it is a derivative of your) in your site / post to youtube.
The bottom line is, you are more or less out of luck in terms of controlling your content once you post it to youtube. I have probably given someone a license to these very words here once i submit them…
Your beef, if any, is with Viacom, not Youtube. Youtube got a take down notice and they had to follow it. You can tell Viacom to stop using it, but can’t use their work (legally at least).
I recommend contacting the EFF (Electronic Frontier Foundation, http://www.eff.org)
I understand your reluctance to sue, or seek a single penny. And I agree to a point. But let’s look at it this way:
I’m guessing you, like most of us reading this, want two things:
1. To protect both the access to, and creators of, valid and legal content.
2. To stop corporations from abusing copyright law, and using it to harass and intimidate individuals.
Most individuals do not have the time or money to defend themselves against Big Business and usually remove the supposedly offending content. In the case of a lawsuit, the costs in time, money and lost wages can be staggering.
Companies such as Viacom and Google will not change their practices unless they are punished. Big Business is only punished in one way, by taking money out of their pockets.
You should sue the pants off both Viacom for infringement, and Google for illegal takedown. Encourage them to re-evaluate policies and follow the letter of the law. Take the proceeds from those lawsuits and start a defense fund, or donate it to the EFF to defend others. Hit them twice with one blow and defend the little guy.
– Hardley C. Cure
Incredible story and further evidence of why an objective view of Fair Use is desperately needed.
The two sides are blowing so much smoke at each other right now that it must stop.
I wrote a recent post on the Attributor blog about this issue. Your story seems like a classic example for the defend fair use folks.
Bottom line with all this Intellectual Proporty Protection is Corporations are the only ones with enough money to exercise it and believe everything we think or dream up is theirs to use and profit from. I can’t wait for the ball to drop on society. A little anarchy is no different than over bought stock market correction. Maybe then we can correct the warped tilt that we’re experiencing.
SINternet
“So you copyrighted this material when you made these advertisements?”
The material doesn’t have to be copyrighted. It is copyrighted.
As an original work, the author has copyright to the work and doesn’t have to do anything.
“Did you register them for fair use?”
What? Fair Use is part of copyright law. There is no registering for Fair Use.
“Publishing the material (in this case airing the ads on television) does not automatically establish copyright.”
The author of the work has copyright protection *before* it was published as already stated.
“Television shows (on conglomerate owned stations) are always copyrighted before publication.”
There is no difference between a Television show and an independent work they all have the same copyright protection.
“If you had copyrighted your matierial, then why would you place it on the web?”
If you have to ask this question, then you probably won’t understand the answer.
“I hope you learn a lesson in copyright from this at least…”
The first step is to understand your subject. Once that is established, then you may understand that the copyright owners work was infringed upon by Viacom.
Essentially there was no permission given to use the work in the first place.
So the work was used without permission and incorporated into another work. It is like creating a webpage and using pictures that you didn’t take for part of the content.
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You create a piece of “art”…
Somehow, it gets out to YouTube…
THAT is a copyright violation all by itself…I know you said, “I don’t mind”, and if that is the case, you need to hit YouTube with a letter having your copyrighted stuff removed…then upload it yourself.
Then it appears on someone’s tv show? THAT is a copyright violation, and you need to pursue it as well…
Then, if Viacom is saying that it belongs to them, have them prove it in court as you sue the pants off them…
Actually, this isn’t a bad idea…
Sue for 100,000,000 and then it will settle, out of court, for 10,000,000, and you will get them to pay royalties for using your content or removing your content from their production…
You have so many legal rights in this case, it isn’t funny…
So long as you are really the original copyright holder…
I’d go for it…
I think you should set up a paypal to raise funds for a lawyer. you can sue viacom and win. DMCA works both ways.
Ill pitch in to help serve some just desserts to a faceless conglomerate.
They have to put your video back up or Viacom must sue you. This is part of the Terms on YouTube’s website. Under the DMCA section, after submitting a counter notice…
“Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube’s sole discretion.”
In the verbage noted here, Viacom would be the copyright holder and you would be the content provider, even though it’s really the other way around.
(continued) That means you win either way, they put it back up, or you have your day in court to make Viacom look stupid.
I’d definitely look for some pro bono legal council, or talk to a local law school to see if there interested in taking it on for student experience. And at the very least keep blogging about updates, and you traffic will continue to grow 🙂