When copyright goes copywrong ... ah, I got nothin
February 9, 2012 10:16 AM Subscribe
Copyright infringement-filter: What's the worst that could happen?
Let's say I've made a music video with a song I recorded and video clips from old films. One of the films isn't public domain. Let's say I used two clips from it, totaling less than 10 seconds. And let's say I was just turned down by the current copyright holder--a major film studio, albeit not the one that made the film in question--for permission.
Let's say I am realistic about the chances that this video will gain widespread explosure, but don't plan to let that stop me from trying. So I'm wondering what would happen in this supertheoretical, hyperhypothetical, fantasyland scenario: The video does go viral. My band gets famous-ish. People pay money for our songs, including the song for which I've made a video. Hell, let's say we sell a DVD that includes the video. We end up having some duration of career, and play some concerts, for money.
If the copyright holder were made aware of the infringement, what category of redresses might you--who know a little something about copyright law but maybe are not a lawyer, and certainly are not *my* lawyer--think a court might find reasonable, and what actions might not be likely to be found reasonable? Youtube taking the video down is obviously a no-brainer. Could the copyright holder make a case that a significant portion of our revenue came to us thanks to this video in which their property was used without permission, and sue us with a reasonable chance of success?
Thanks for any thoughts on the subject.
Let's say I've made a music video with a song I recorded and video clips from old films. One of the films isn't public domain. Let's say I used two clips from it, totaling less than 10 seconds. And let's say I was just turned down by the current copyright holder--a major film studio, albeit not the one that made the film in question--for permission.
Let's say I am realistic about the chances that this video will gain widespread explosure, but don't plan to let that stop me from trying. So I'm wondering what would happen in this supertheoretical, hyperhypothetical, fantasyland scenario: The video does go viral. My band gets famous-ish. People pay money for our songs, including the song for which I've made a video. Hell, let's say we sell a DVD that includes the video. We end up having some duration of career, and play some concerts, for money.
If the copyright holder were made aware of the infringement, what category of redresses might you--who know a little something about copyright law but maybe are not a lawyer, and certainly are not *my* lawyer--think a court might find reasonable, and what actions might not be likely to be found reasonable? Youtube taking the video down is obviously a no-brainer. Could the copyright holder make a case that a significant portion of our revenue came to us thanks to this video in which their property was used without permission, and sue us with a reasonable chance of success?
Thanks for any thoughts on the subject.
This seems to be a fair use balancing act. Clearly, since it's a small excerpt, you're OK under that provision of the law. It would also probably be a real stretch for them to show that you're harming their market. However, the fact that your own work is for-profit hurts your case. If the film you've excerpted from is fiction, that probably also hurts your case a bit.
If I had to guess about this hypothetical situation, I bet you'd get sued, but prevail in a trial. However, the legal cost may make it totally not worth it. Do you (or the hypothetical you) really need these film clips?
posted by Betelgeuse at 10:26 AM on February 9, 2012
If I had to guess about this hypothetical situation, I bet you'd get sued, but prevail in a trial. However, the legal cost may make it totally not worth it. Do you (or the hypothetical you) really need these film clips?
posted by Betelgeuse at 10:26 AM on February 9, 2012
Best answer: I am a lawyer, but I am not your lawyer and this not legal advice.
You don't say where you are, but as far as worst-case scenarios go: 100% revenue and songwriting credit is not without precedent. I don't recall whether there are punitive damages for breach of copyright but maybe factor those in, too.
Obviously you can make arguments that this situation is different, fair use, &c. Those arguments mean nothing, zip, nada, unless and until a judge agrees with them. A judge only even gets to hear them after (probably) tens of thousands of dollars in legal fees.
So that's your worst case scenario: you pay tens of thousands of dollars in legal fees, you lose, and then have to transfer ownership, songwriting credit, 100% of revenue, and maybe punitive damages over to the copyright holder.
I don't like the fact that you've already asked them and they said no. Since we're thinking worst-case scenarios, let's say the judge holds that against you, too.
How likely is this scenario? You'd have to hire a lawyer to answer that.
Also, anonymize this question.
posted by gauche at 10:27 AM on February 9, 2012 [7 favorites]
You don't say where you are, but as far as worst-case scenarios go: 100% revenue and songwriting credit is not without precedent. I don't recall whether there are punitive damages for breach of copyright but maybe factor those in, too.
Obviously you can make arguments that this situation is different, fair use, &c. Those arguments mean nothing, zip, nada, unless and until a judge agrees with them. A judge only even gets to hear them after (probably) tens of thousands of dollars in legal fees.
So that's your worst case scenario: you pay tens of thousands of dollars in legal fees, you lose, and then have to transfer ownership, songwriting credit, 100% of revenue, and maybe punitive damages over to the copyright holder.
I don't like the fact that you've already asked them and they said no. Since we're thinking worst-case scenarios, let's say the judge holds that against you, too.
How likely is this scenario? You'd have to hire a lawyer to answer that.
Also, anonymize this question.
posted by gauche at 10:27 AM on February 9, 2012 [7 favorites]
Seconding gauche -- and also pointing out that you can be on the hook for attorney's fees for the opposing party if you lose. So you can have gauche's worst case scenario, plus another set of legal fees on top of that (and probably more expensive lawyers than you'll have).
posted by katemonster at 10:32 AM on February 9, 2012 [2 favorites]
posted by katemonster at 10:32 AM on February 9, 2012 [2 favorites]
Also, the above notwithstanding, it is theoretically possible that you might be able to leverage the publicity from that worst-case scenario into something quite profitable, although I would hardly call that a business plan.
posted by gauche at 10:33 AM on February 9, 2012 [1 favorite]
posted by gauche at 10:33 AM on February 9, 2012 [1 favorite]
I bet you'd get sued, but prevail in a trial
The vast majority of copyright infringement cases are settled out of court, so very few defendants actually "prevail" in any of these sorts of cases. Kind of Bloop's cover art is a good example of an artist getting lawsuit threats and agreeing to a settlement even though they thought they were legally protected under fair use. So assuming you did make a lot of money related to this and the copyright holder did want some of it, the most likely scenario would probably be the copyright holder using lawsuit threats to make you remove the footage and getting a settlement from you for a cut of the profits. If you don't have or make a bunch of money though then the copyright holder probably won't want to waste time or money doing anything other than asking YouTube to take it down though.
posted by burnmp3s at 10:42 AM on February 9, 2012
The vast majority of copyright infringement cases are settled out of court, so very few defendants actually "prevail" in any of these sorts of cases. Kind of Bloop's cover art is a good example of an artist getting lawsuit threats and agreeing to a settlement even though they thought they were legally protected under fair use. So assuming you did make a lot of money related to this and the copyright holder did want some of it, the most likely scenario would probably be the copyright holder using lawsuit threats to make you remove the footage and getting a settlement from you for a cut of the profits. If you don't have or make a bunch of money though then the copyright holder probably won't want to waste time or money doing anything other than asking YouTube to take it down though.
posted by burnmp3s at 10:42 AM on February 9, 2012
Best answer: I don't recall whether there are punitive damages for breach of copyright but maybe factor those in, too.
(I am an attorney, but I am not your attorney. This is not legal advice. I am not commenting on the likelihood that what you have done or plan to do has or will constitute copyright infringement. I am not commenting on the applicability of any defenses or the likely outcome of a copyright infringement suit in your case. I am only outlining the potential remedies available in a copyright infringement case in the United States. You should consult a competent attorney in your jurisdiction.)
Statutory damages of $750 - $30,000 per work are available in a copyright infringement case, which may be increased up to $150,000 if the infringement was willful. The copyright owner may also be awarded attorney's fees and court costs, and the infringer may be enjoined against future infringement. Violation of such an injunction can be punished by contempt of court.
If the infringement was willful and committed for the purpose of financial gain, then that also opens the door to criminal penalties, including imprisonment, substantial fines, and destruction of the infringing works.
posted by jedicus at 10:48 AM on February 9, 2012 [7 favorites]
(I am an attorney, but I am not your attorney. This is not legal advice. I am not commenting on the likelihood that what you have done or plan to do has or will constitute copyright infringement. I am not commenting on the applicability of any defenses or the likely outcome of a copyright infringement suit in your case. I am only outlining the potential remedies available in a copyright infringement case in the United States. You should consult a competent attorney in your jurisdiction.)
Statutory damages of $750 - $30,000 per work are available in a copyright infringement case, which may be increased up to $150,000 if the infringement was willful. The copyright owner may also be awarded attorney's fees and court costs, and the infringer may be enjoined against future infringement. Violation of such an injunction can be punished by contempt of court.
If the infringement was willful and committed for the purpose of financial gain, then that also opens the door to criminal penalties, including imprisonment, substantial fines, and destruction of the infringing works.
posted by jedicus at 10:48 AM on February 9, 2012 [7 favorites]
If you just put it on youtube, chances are you get a DMCA take down notice and nothing else.
If you try to sell it, all bets are off.
posted by empath at 10:51 AM on February 9, 2012
If you try to sell it, all bets are off.
posted by empath at 10:51 AM on February 9, 2012
Response by poster: OK, you people have sufficiently scared the crap out of me. Not sure what I'll use instead of these clips, but I'll find something. Thanks sincerely for the non-legal advice and time.
posted by troywestfield at 11:26 AM on February 9, 2012
posted by troywestfield at 11:26 AM on February 9, 2012
I have a friend who is a documentary filmmaker. He had two clips of his films used without permission by a fairly notable band.
He never said how much he got as a settlement, but he started his film school with it.
posted by liquado at 11:27 AM on February 9, 2012
He never said how much he got as a settlement, but he started his film school with it.
posted by liquado at 11:27 AM on February 9, 2012
Your video goes viral, movie studio X slaps it with a DMCA takedown, Youtube takes it down, you lose your Youtube account.
Since this video has been flagged as belonging to movie studio X, that means the automated takedown system will now auto-flag any videos that contain similar audio. Meaning you won't be able to upload another non-infringing video for the same song unless you go to the expense and trouble of proving to Youtube that the song belongs to you, not movie studio X.
posted by RobotHero at 11:27 AM on February 9, 2012
Since this video has been flagged as belonging to movie studio X, that means the automated takedown system will now auto-flag any videos that contain similar audio. Meaning you won't be able to upload another non-infringing video for the same song unless you go to the expense and trouble of proving to Youtube that the song belongs to you, not movie studio X.
posted by RobotHero at 11:27 AM on February 9, 2012
Youtube takes it down, you lose your Youtube account
One DMCA takedown does not result in an automatic account suspension or deletion. YouTube uses a strikes system.
Since this video has been flagged as belonging to movie studio X, that means the automated takedown system will now auto-flag any videos that contain similar audio.
As far as I know, this is not true. The automated Content ID system uses known copyrighted files submitted by the copyright holders as reference files. I have never heard of any kind of auto-flag based on content of infringing videos for YouTube that would result in this kind of issue.
posted by burnmp3s at 11:40 AM on February 9, 2012
One DMCA takedown does not result in an automatic account suspension or deletion. YouTube uses a strikes system.
Since this video has been flagged as belonging to movie studio X, that means the automated takedown system will now auto-flag any videos that contain similar audio.
As far as I know, this is not true. The automated Content ID system uses known copyrighted files submitted by the copyright holders as reference files. I have never heard of any kind of auto-flag based on content of infringing videos for YouTube that would result in this kind of issue.
posted by burnmp3s at 11:40 AM on February 9, 2012
You might look at the experiences of NEGATIVLAND with things like this. They're more deliberately "culture jamming" than simply making use of other work in fair-use sort of sizes, but a lot of what they've gone through should be informative to you.
posted by phearlez at 11:44 AM on February 9, 2012
posted by phearlez at 11:44 AM on February 9, 2012
You might be interested in taking a look at the Code of Best Practices in Fair Use for Online Video.
posted by radiomayonnaise at 11:48 AM on February 9, 2012
posted by radiomayonnaise at 11:48 AM on February 9, 2012
OK, you people have sufficiently scared the crap out of me.
Well, you asked some lawyers for their worst-case scenario. This is one of the areas where we get to be creative, and don't have to worry about solving problems while doing it.
posted by gauche at 12:10 PM on February 9, 2012 [6 favorites]
Well, you asked some lawyers for their worst-case scenario. This is one of the areas where we get to be creative, and don't have to worry about solving problems while doing it.
posted by gauche at 12:10 PM on February 9, 2012 [6 favorites]
Response by poster: No, it's much appreciated. I'm not delusional about my chances, but if I plan to promote this, I shouldn't plan to sabotage myself.
posted by troywestfield at 12:13 PM on February 9, 2012
posted by troywestfield at 12:13 PM on February 9, 2012
you could try to creatively re-create the 10 second clips, maybe with dogs or legos or hip elderly people.
posted by yeahyeahyeahwhoo at 12:27 PM on February 9, 2012 [6 favorites]
posted by yeahyeahyeahwhoo at 12:27 PM on February 9, 2012 [6 favorites]
As far as I know, this is not true. The automated Content ID system uses known copyrighted files submitted by the copyright holders as reference files.
I admit that was based more on "wouldn't put it past them" than intimate knowledge of how it works. Imagine the video does go viral and gets taken down. If it was popular enough, people will start reposting the video. So either Youtube or the Studio has keeps playing wack-a-mole with the reposts, or they put the whole video into the Content ID system.
posted by RobotHero at 1:16 PM on February 9, 2012
I admit that was based more on "wouldn't put it past them" than intimate knowledge of how it works. Imagine the video does go viral and gets taken down. If it was popular enough, people will start reposting the video. So either Youtube or the Studio has keeps playing wack-a-mole with the reposts, or they put the whole video into the Content ID system.
posted by RobotHero at 1:16 PM on February 9, 2012
I don't like the fact that you've already asked them and they said no.
Sounds like this has already been resolved, but I am certain that the above has resulted in you now having your name, the name of your band, etc., in their automated seek and destroy algorithms. You are on their radar.
posted by Meatbomb at 8:51 PM on February 9, 2012
Sounds like this has already been resolved, but I am certain that the above has resulted in you now having your name, the name of your band, etc., in their automated seek and destroy algorithms. You are on their radar.
posted by Meatbomb at 8:51 PM on February 9, 2012
Having been in a slightly similar quandary, let me reassure you that while you currently feel disappointed that you now have to go to lengths just to make your beautiful video "worse", once you've made the changes, you will feel soooo much better that you own everything about your production free and clear, and you don't have to look over your shoulder or worry about having an Achilles heel come back to haunt you.
The exaltation of your production being truly yours and totally above board, will be immensely more rewarding than the satisfaction of using the clips you wanted to use.
posted by -harlequin- at 12:48 AM on February 10, 2012 [1 favorite]
The exaltation of your production being truly yours and totally above board, will be immensely more rewarding than the satisfaction of using the clips you wanted to use.
posted by -harlequin- at 12:48 AM on February 10, 2012 [1 favorite]
This thread is closed to new comments.
But -- it strikes me that if you've approached the copyright holder about your plans, they are AWARE of your interest in their property, so their awareness is going to be that tiny bit more attuned to your presence -- which makes it actually a bit more likely that they'd find out. And the fact that you ignored their wishes strikes me as something they'd be LESS likely to overlook.
As for how far things can go if you approach a copyright holder for permission to do something, they say no, and you try to do it anyway: I direct you to the saga of The Harry Potter Lexicon and its related lawsuit.
posted by EmpressCallipygos at 10:23 AM on February 9, 2012