News: Independent film maker Christopher Knight made the commercial below to campaign for a local school board (he lost).
Afterwards, VH1 (owned by Viacom) saw Knight’s funny video, copied parts of it, and showed it on the VH1 show “Web Junk 2.o.” Viacom did so without asking for copyright permission from Knight. You can see the VH1 clip here. Knight heard about being featured on the VH1 show from friends, so he copied the segment about his video and posted it on YouTube.
So what happened next? Viacom sent a DMCA notice to YouTube demanding the removal of Knight’s video of the VH1 clip that features Knight’s video. YouTube complied and removed the video. Now, Knight is incensed. Here’s what he writes on his blog:
“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!”
Analysis: The DMCA has a provision to stop this kind of nonsense. Under 17 U.S.C. 512(f), a person who materially misrepresents that a work is infringing in a DMCA notice can be civilly liable for damages. So if a case is successfully brought against Viacom, it could be held liable (although damages might be somewhat difficult to prove). It’s also worth noting that, under copyright law, a defendant who infringes a third party’s copyright by using the third party’s copyrighted material to make a derivative work loses any right to claim copyright in the derivative work. Anderson v. Stallone, 1989 WL 206431, *9-10 (C.D.Cal. Apr 25, 1989).
We’ll see what happens. Knight says he doesn’t have the resources to fight a legal case. This is really bad PR for Viacom, so I expect it will do something to make the brouhaha go away. Maybe EFF will get involved?
September 1, 2007 at 4:08 pm |
Commentary about political speech is given the most latitude under fair use. Are you really suggesting that media outlets shouldn’t be permitted to use political ads in their commentary about a candidate?
Where was the outrage when TV stations were running the Obama/Apple YouTube ad? Why should this yahoo’s ads be treated differently?
September 1, 2007 at 5:47 pm |
No, I think the audacity is using the guy’s video on a commercial show without his permission and then accusing him of infringement after he posts the clip of his video as shown by VH1. The guy has legitimate point: it’s his creative work, not VH1’s, that VH1 is showing without his permission. If Viacom thinks what the guy did is infringing, then what about what Viacom did? Which is worse?
September 1, 2007 at 6:06 pm |
Under the law, what Knight did was worse. In court, there’s a huge difference between offering commentary on a political ad, and just playing unmodified copyrighted content on a site like YouTube.
You may not like it, but that’s the law. Political ads are not protected from use in commentary, and broadcasting unadulterated copyrighted commentary is not protected from DMCA takedowns.
If you really believe that Knight retains rights to VH1’s content, doesn’t it then make sense that I would retain rights to your blog, based on the fact that *my* comments are included?
September 4, 2007 at 2:59 pm |
Though I think that SillyRabbit’s analogy goes a bit too far, I have to agree with the sentiment of the other commenters. Viacom doesn’t appear to have broken any laws here. THey have a strong fair use argument for their use of the commercial and Knight has a much weaker one for his posting of the VH1 clip.
Though I would feel that Viacom has an ethical responsibility to allow Knight to use the clip. Legally Viacom seems to be in a much stronger position. That is sad, and frustrating, but seems to be the case.
September 13, 2007 at 1:14 am |
[...] admits mistaken DMCA notice after EFF gets involved News: I reported here a couple weeks ago about the questionable DMCA notice that Viacom (MTV) sent YouTube to take down [...]