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!
Ted Turner is behind this madness!
Viacom can claim that you were using their video segment without permission; in other words, the broadcast segment shown. The fact that your work was embedded in the content is a separate issue.
Viacom should state that you can always place your original content on YouTube and they would have no claim on taking that content down from the site. But their content (i.e. the clip from their show and the black dude popping up) belongs to them, notwithstanding what belongs to you.
Good Luck anyway, on your side.
Fuck VH1. They’re not even funny. The only entertaining parts in that program are the actual clips they use in the show. Oh, oh, here’s a funny clip. And here’s an unfunny fat man to make snarky comments. VH1 you so edgy and relevant! :O
Fuck media companies’ hubris and their uninteresting no-content shit programs. 🙂
At the very least,
1. Send Viacom a DMCA take down notice to stop using your Content. This will cause your work not to be showed on VH1 anymore, however that fruit has been squeezed and your not loosing an audience over it now. This will also allow you to gauge Viacom’s reaction.
A. They may ignore it completely and then you sue them by following step 2
B. They send you a counter notice (that will probably be huge) and you can dig through that
C. Or they may comply and you can still sue them for using your content before that by using using the information in step 2.
2. Make notes of everytime that segment aired and continues to air
You, sir, are lose. You have no hope of getting any recompense because while you do have a copyright in your work, you can get nothing more than an injunction until said work is registered with the copyright office.
Oh the irony…
VH1 used it without my permission and I didn’t particularly have a problem with that
Nor should you, considering that Web Junk’s use of the clip is well within the guidelines of Fair Use.
Also, if they do C, then it makes things much easier. By complying and not showing your content anymore they’re acknowledging that you’re the copyright holder. This gives you tons of leverage.
And last thing, as someone else said, it’s nice on principle to sue not for money, but your not going to get their attention that way. They only understand one thing.
$$$
Hurt their bottom line and you’ll turn their heads.
Unfortunately you are legally required to make at lease a minimum effort to protect your own copyright, so while you may be able to defend your use of your own work, if you did not try to stop Viacom from using your material, you may be SOL. Check with your attorney because personally, I’d love to see you sue their assets off. 🙂
And that’s why you read the Terms of Service… I think things would be “much* different if you had posted the videos on your own site, or on a site that allows you to control the license (blip.tv, Ourmedia) instead of granting the license you did to YouTube… After reading the YouTube Terms of Service, do you still think you have a chance, and didn’t give away the rights?
Don’t fight it. Let Viacom set the precedent, accept it, then get all the viacom media you can get your hands on and crop your voice over in the beginning saying “A Chris Knight Re-dub”. Now, since you modified it slightly, it is officially yours based on the precedent they set. They cannot harrass you about it nor do you need their permission to do it. Essentially, you can take credit for VH1, but who would want to do that anyway?
When you’re making an argument for education, spelling really should count. The possessive of the word “it” is “its”. You use the apostrophe in “it’s” as a contraction of “it is”. So “its VH1 show” is the proper way to write that. I guess you got left behind.
freakin’ ridiculous that all it takes is a letter from Viacom for Youtube to roll over on you. No evidence, no substantiating that claim, just an allegation.
Come to think of it, maybe if enough people posted copyrighted material on Youtube and the like, we could cripple the Viacom’s of this world with their own legal fees.
To me this is no different that including a screenshot of a website saying “Hey look! Website.com featured me today.” Oh crap, I just thought of something. Do screenshots violate copyrights?
All I have to say is… wow.
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“Unfortunately you are legally required to make at lease a minimum effort to protect your own copyright”
Untrue– that’s a trademark you’re talking about. A copyright you can selectively enforce and not enforce however you choose.
The Terms of Use do say that they can sub-license it to whoever they want, but like someone else said I doubt Google is making any licensing deals with Viacom.
The Terms of Use also say that if you take down the work then the license is terminated after a “commercially reasonable time”. So if you took your original piece down they would be forced to stop using it (if Viacom ever had a license in the first place). That doesn’t really solved your originally problem though.
I consulted my magic 8 ball and believe you will inherit a great sum of money. 🙂
I agree with anonymous above me. This is a clear violation on Viacom’s part. Any intellectual properties attorney will jump on this. Call your state’s “Lawyer’s for the Arts” organization and they can direct you to an attorney that will take this case for a percentage.
Viacom kind of mess-up with this one. I’m sure they have a kid on board that their entire job to hunt down incidents like this . . . the problem, they really need to LOOK at the video clip that they are citing. In your case, it’s a video clip that you original created (oops! – they didn’t look). Basically, they just ran the protocols and now they are in deep doo-doo. And hope that you don’t make a stink about it.
Make that stink.
As strange as it might sound, VIACOM has the rights to stop you from posting the segment. It is called broadcasters’ right.
Basically it means you cannot videotape some broadcast and sell it, even if the copyright on the broadcast had lapsed.
I know this because at present, there is a lot of heat on WIPO revision of this right.
Of course you can always leverage your own copyright to get VIACOM to allow you to post the stuff on YouTube. That is, assuming VIACOM went beyond fair-use.
“Basically it means you cannot videotape some broadcast and sell it, even if the copyright on the broadcast had lapsed.”
I wasn’t selling it though. Haven’t made a cent off of it in any way at all. I don’t want to make any money off of it even now. I just want to be able to show the clip that they produced from my own material on my blog.
Whether you think Web Junk is “news” or not, but news reporting is specifically one of the reasons why Fair Use exists. The main point being that the segment was designed to report on and draw attention to your work, and not supercede it by airing it in its entirety or making the viewing of your original unnecessary through its airing. If there’s any arguing to do, it’d be there.
Now, if you had posted your response video as a reply/report on the VH1’s airing using new footage and clips of theirs, I would see a problem with that takedown. But since what *was* posted was a portion of their show as it literally aired on VH1, there’s nothing (legally) wrong that Viacom did.
Is it possible that YouTube Sublicensed directly to Viacom and left you out of the equation?
From YouTube’s Terms of Use Policy:
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. 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. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.
but would the title / comments on the youTube page indicating the piece from VH1 on my commercial qualify as a report?
Viacom was wrong. Dead wrong. If they are not legally wrong, the law needs to change.
There are penalties for posting frivloas and baseless demands under the DMCA and you should investigate those and ask for a full retraction by Viacom and a wirtten apology at the least .
please please please sue viacom to hell. Make viacom feel what they do to others. And probably make a few bucks at the same time.
It’s quite possible that the entire action by Viacom was conducted by an automated process. In ther words, Viacom has a program that scans YouTube for key words, which then provides a link to some lacke to ruberstamp and send out a copyright infringment notification. It’s quite possible that at no point in the process did an intelligent human being make a decision on whether or not the material actually infringed copyright before the notice was sent out. 😉
Chris,
I’d contact Google legal. This situation may be of interest to them as they defend against Viacom’s suit that claims:
“YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed.”
“I just want to be able to show the clip that they produced from my own material on my blog.”
You could probably get away with hosting it yourself and not on YouTube. Heck, you could even get permission if it’s okay to host it and put it on your blog. Viacom takes any clips of their shows off YouTube.
They also didn’t need your permission, you gave YouTube/Google permission to let whoever they saw fit use your video when you hosted it. Next time, read what you agree to.
Just cuz ViaCom uses your content (all copyright aside), it does not give them the right to force you to take it down UNLESS OF COURSE you are streaming the VH1 airing of the video. Period. Most likely a case of someone at ViaCom shooting off early…which in your case may get you a written apology but hey…SHOW ME THE MONEY!
If only there was an EFF’ing organization that could EFF’ing stop these mother EFF’ers!
http://www.eff.org
Didn’t Viacom sue over the Colbert Report “falsiness” spoof? I’m no lawyer, one could make a good case that if Viacom argued they own the rights to the Colbert Report such that any new material constitutes infringement it’s hypocritical for them to sue you. I know Viacom eventually backed down, but if nothing else you have evidence of previous abuse of the DMCA.
That’s my 2c. Good luck, man.
Chris, I do hope you go after them, if for no reason other than to wake them up. Viacom is known for this kind of BS, they’ve done it before, and unless they start getting taken to court over it, they will continue.
I’m not convinced if what they did with your work is considered fair use, because I believe (and I could well be wrong) that only portions of the work can be used in such a manner, and it looks like they used your entire video.
The clip they had taken down, seems well within the fair use because the majority of it was still your video, even though it was aired by their network. Only a small part was Viacom’s work.
Consult a lawyer at the very least. If you’re not after money, someone else suggested donating to charity, which would be a cool thing to do.
Whatever you do, good luck.
John
here is the http://www.chillingeffects.org counter-notice generator,
http://www.chillingeffects.org/dmca/counter512.pdf
good luck
Brandon: You do not have to register copyright in order for copyright law to apply. Didn’t you ever bother reading up about it? Registering copyright is merely a formality and helps you make your case if you ever have to defend it in court. If you can prove when you created the work, however, registration is completely unnecessary.
OK. First thing, go READ the DMCA.
Because you have an option, called a “counter notification”, as others have mentioned. When Diebold Election Systems tried to take my site down under the DMCA, I filed one successfully and I believe the Chillingeffects site has mine on record. My original:
http://www.equalccw.com/liebold.html
As always, corporations have proven that they only believe in the law when it benefits them to do so, and in intellectual property rights only when they can make a profit off of it.
Screw suing them, you can’t win no matter how much you contribute. Instead, attack them in the one place that matters: their bottom line. Organize a boycott. Encourage hackers to harass messageboards and websites owned by Viacom. Assist in piracy efforts. Embarass them with the truth.
The only way we can ever convince corporations that we don’t appreciate their behavior is to hurt them as hard and as deeply as our little plebian bodies are capable of. Viva la revolution!
Dude, it is very simple. Just file the counter-notice.
Youtube are not the bad guys here. They are just following the law. All you have to do is follow the law to, and write them a simple letter called a counter-notice, and your video can go back up.
Basically, the dispute is between you and Viacom. Youtube is caught in the middle, and just protecting themself.
Don’t “write their copyright guy”. Just file the frigging notice and be done with it.
So, if I go see a movie in the theaters, film the whole thing and post it online. Can I sue the movie company for showing it in theaters there after? Because that how it seems.
Just republish your original video. Hardly anyone watches TV anymore anyway.
As an academic lawyer this is such an interesting situation. I’d like to point out that the four enumerated categories of fair use set out in s.107 of the Copyright Act 1976 are not exhaustive. As many scholars before me have pointed out, they simply represent the threshold for the minimal amount of investigation by a court. There is absolutely no reason as to why a court could not find this a fair use if they were to interpret copyright in the appropriate constitutional context.
This is a perfect example of how laws concerning copyright and intellectual property are outdated and need to be reformed/abolished.
This is also a perfect example on how the big “rights-holders” might dig their own grave when confirming beyond any doubts that the forementioned is a fact of the informationera and a fact to adjust to!
Keep fighting this and rest assured the entire world is watching!
Cheers from Sweden and The Pirate Party!
“The only way we can ever convince corporations that we don’t appreciate their behavior is to hurt them as hard and as deeply as our little plebian bodies are capable of. Viva la revolution!”
Roland: I agree that we should indeed raise our voices and speak out and fight this kind of absurdity. I disagree though to do it in ways that will, in the long run, harm our goals. Hacking sites etc is such a thing that will only do harm in the long run… Speak your word, blog, organize boycotts, mention the inadequacies and injustices the concerned companies and lobbyists are committing in every which way you can!
You may tru to get some help form EFF (http://www.eff.org).
Just take *their* “journalistic piece” and embed it into a new “journalistic piece” of your own.
Effectively, you could just take the clip that they took down and re-post the exact same thing (but with a 5 second title screen/voiceover at the start explaining how the following video is an example of Viacom’s perceived hypocrisy when it comes to copyright).
Then you could link to it from this page… and the clip would be back on YouTube with more hits than ever… and totally legitimate 🙂
You have got to contact the Electronic Frontier Foundation
I’m liking this whole situation, I’m afraid. It’s refreshing to see a communications enterprise falling down on its eponymous role. I can’t imagine Viacom going out of its way to make contact or amends, and they can afford to put off any difficulties. I sympathise with you and your content, and I wish you the best in fighting this moral battle.
Regards,
On another note, your comment form doesn’t seem to work with Firefox. You might want to look into that.
All the best,
I cant bloody believe that… Go to your local news agency, sue them, make it as public as possible. The Inquirer already has your story it will move from there. Get those dirty bastards at Viacom. They stole your work and claim it as their own. I know of no greater insult, for the sake of your honor make sure this engagement with Viacom has a worthy ending.
Good luck friend
Stab them with a blunt spoon!