Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing
from the that's-not-how-the-law-works-at-all dept
Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott had apparently brought on a publicist, Max Markson, who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a “fair usage fee.” As we pointed out, this was idiotic — and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that “copyright experts agreed” that they had a point. That’s flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson’s interpretation of copyright law is laughably wrong.
Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law is there such a thing as a “fair usage fee”) and rather insisted that he’s obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He’s also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:
?Any footage has to be owned by somebody. It?s not like it?s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it?s the same in this case.?
He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.
?Fair use doesn?t really apply to images,? he said. ?There?s a fair use argument on the video, but there?s a very clear copyright on the use of the photographs.?
The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means “in the public domain.” It does not. Things in the public domain don’t need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That’s why there is no such thing as a “fair usage fee.” Second, the idea that “fair use doesn’t really apply to images” is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn’t even remotely arguable. Markson is going around spewing pure ignorance as copyright law — and using it to shake down companies.
And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:
The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.
Uh, no. Fair use does not “expire.” Copyrights expire, but fair use does not. The Guardian’s reporter, Jon Swaine, apparently called up Markson’s employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.
Asked why they believed the footage needed to be licenced, Nissen Gray said: ?We have discussed with our copyright attorneys and ?fair use? doesn?t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.?
I’m curious who these “copyright attorneys” are, because they’re not just wrong, they’re so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn’t seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he’s wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.
Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to “cash in.” However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what’s being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers, and they quite likely will hit back seeking a declaratory judgment for non-infringement.
* In further conversations, Markson also mocked me for caring about this, talking about how he’s “closing deals daily!” as if he’s proud of the fact that he’s directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.
Filed Under: cease and desist, copyright, fair use, journalism, max markson, reporting, walter scott
Companies: markson sparks, the guardian
Comments on “Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing”
What happens when copyright becomes the culture, rather than the works they are supposed to represent?
Re: Re:
You supply the question as a hypothesis, but copyright is already a culture rather than a vehicle for the generation of works!
Publicist logic
“I badgered some companies into paying up to make me stop bothering them, so my legal arguments must be correct.”
Re: Publicist logic
doubt he had to badger them. This benefits the media companies… so why not pay, it’s win win for them.
Re: Re: Publicist logic
G’day mate. I represent John Fenderson’s interests in his Techdirt IP. Should you wish to continue expanding on his valuable property, please note the Permissible Commenting period has elapsed.
As you say: why not pay, it’s win win for you.
Re: Re: Re: Publicist logic
I represent the internet poster know as Anonymous Coward and want to let you know the fees for Anonymous Coward’s postings have increased by 100%.
Re: Publicist logic
You’ll find that’s how a lot of things work. If people fear me because they think I have power, that gives me power.
Uh oh...
And now you’ve exposed his (patent pending) business method and his trade secrets! Prepare for further lawsuits!
Every time somebody pays off one of these copyright ghouls because it’s easier than standing up to them, a child goes hungry, a puppy gets kicked, and Zombie Hitler does a little jig.
This is Really Impressive
I don’t even notice anymore when an attorney rambles cluelessly about fair use cases, not knowing the court’s 4-factor test, for instance. But this guy has to take the cake for unwarranted confidence since he doesn’t even know what any of the words mean. Dude should be in sales.
Re: This is Really Impressive (he should be in sales)
He is in sales; he is a publicist not a lawyer. And he seems to be hiring poor advisers….
Re: This is Really Impressive
He’s a publicist. He is in sales.
Follow the money
I was wondering about how much money the copyright holder would actually get out of this. The answer appears to be, the publicist gets a cut, then the lawyer gets a cut, and the copyright holder gets bubkis. Pretty much the Hollywood business model.
Re: Follow the money
Lawyers take their cut first.
Markson's Resume
I can’t help but wonder if Markson’s resume lists previous experience with either The SCO Group or Prenda Law.
Re: Markson's Resume
Oh come on! He’s just a fan creating a derivative work on their efforts. They should sue him!
Hmm..
Obviously none of these clowns has a clue, but it does make me wonder one thing…
If I (or anyone) shoots a video such as this one and wants to make money from it, how would you go about it? If you just tell the cops you have it they’ll likely seize it and destroy it. You can’t post it publicly without it ending up like this one – you don’t get any money. If you try filing a copyright for it, the prosecutors will seize it as soon as they hear of it.
What’s left? Sell rights to it to a media outlet?
Re: Hmm..
Sell the rights to a media Outlet is exactly how you would profit off of it. It how the guy who filmed the Kennedy Assasination made money off of it, he had 3 copies made. 2 for the investigation, and then sold the third to a news outlet. He had the best, most complete video, and so was able to command to dollar.
I mean, if you want to profit off tragedy.
Re: Re: Hmm..
You both forgot the first step. You first have to sell your soul to Satan.
Re: Re: Hmm..
Not so much profit off tragedy, but I’ve got 12 exterior cameras on the two houses here, and it’s a really crappy neighborhood. I never know what’s going to show up on the IR video until I review it. Why not make a buck off it if there’s something newsworthy?
Re: Re: Re: Hmm..
Then you can do as James Burkhardt suggests, if you just want to make a few bucks off the raw footage. Or you could use the footage as part of a larger work that you sell.
To me, the essential point is that you can’t prevent fair use (and that’s a good thing!), but fair use doesn’t stop you from monetizing.
Re: Re: Re:2 Hmm..
Your last is why I posed the question. If someone gets caught doing (whatever illegal act) on camera, someone is going to make money from it, and it’s usually not the person who shot the video.
I catch all kinds of drug deals and the like on the cameras that face the road, I may give a call to the local news and see if they’d be interested in the footage. Although it’s mostly State Police that patrol this area, and they really come down hard on anyone criticizing them, so it may not be worth persuing.
Re: Re: Re:3 Hmm..
whats stopping you from building your own news station to cash in on those sweet, sweet money checks?
or
whats stopping you from getting copyright law changed to the way you’d like it to be?
Re: Re: Re:3 Hmm..
“I may give a call to the local news and see if they’d be interested in the footage”
It never hurts to ask, but I would be surprised if they’re interested. There’s very little that’s newsworthy about random drug deals on the streets. If you happen to catch a drug deal that goes disastrously wrong, though, you may have something.
Re: Re: Re:4 Hmm..
That’s more along the lines of what I was thinking. One of these idiots getting shot or shooting someone on camera.
As to the random deals, every so often the local news does a “community interest” bit that shows how downhill the area has become.
I’d kill him for this stupidity, but then we’d still have to wait through 70 more years of this nonsense before his video went into the public domain. Curse you, excessively long copyrights!
The licensing agent in Australia is mistaken on the finer point of fair use law (actually, a lot about fair use law), but then so too is the author here.
It is doubtful that media outlets engaged in news reporting that relies in part upon the video will any time soon lose the benefit of fair use under US law, but it should be borne in mind that the relevant US law is not an international norm. Moreover, uses that are not associated with actual news reporting do not enjoy the scope of protection under the fair use doctrine as is accorded the news media.
IOW, it is not at all difficult to envision factual scenarios where the use of the video, including stills, could be deemed by a court to be outside the scope of fair use within the US. For example, start printing t-shirts with stills taken from the video for sale on-line and you might very well discover one such scenario.
Re: Re:
Those are some nice hypothetical situations that have nothing to do with the actual situations being discussed.
Re: Re:
Just to be clear, there are other uses of the type stated in Title 17 that do enjoy broad protection under the fair use doctrine (teaching, commenting, etc.), but the uses so stated are but a subset of all potential uses of the material. Venture outside that subset and a fair use defense can lose much vitality.
Re: Re: Re:
Because its no longer fair use…And in no way is the article saying that all possible uses of this video are fair use. Only that the news using this clip is a clear fair use case because it is for news reporting and commentary.
Also, Fair Use is not a defense, it isn’t infringement at all.
Re: Re: Re:
Just to be clear, there are other uses of the type stated in Title 17 that do enjoy broad protection under the fair use doctrine (teaching, commenting, etc.), but the uses so stated are but a subset of all potential uses of the material. Venture outside that subset and a fair use defense can lose much vitality.
That’s not true. Those types of uses are just a bit of non-binding guidance. The real issue is whether the use is fair. The four factor test is the minimum level of analysis used to determine that. Since the illustrative examples you mention are merely that, uses have easily been found to be fair other than those listed, and uses of the types listed have been found unfair at times.
“Uh, no. Fair use does not “expire.” Copyrights expire, but fair use does not. “
Actually, copyrigts no longer expire either. Not anymore.
I think I understand the logic behind the very broken argument he is trying to make. Since one of the purposes of fair use is news reporting, he’s trying to claim that if the story isn’t newsworthy anymore then fair use is no longer applicable and thus the fair use has “expired” as he sees it. This is problematic for many reasons. 1. Newsworthiness is not a determining factor for fair use. 2. There are many other purposes that qualify as fair use. 3. If he were correct, by engaging in this behavior he is without a doubt extending the newsworthiness of the story thus “extending” the fair use he is claiming has “expired”.
Re: Re:
Effectively he is trying to claim that the story is no longer news and therefore no longer covered under fair use when in fact the original story is still news, just old news.
Re: Re:
Re: Re: Re:
For a judge to make that determination someone like himself or a lawyer on his behalf would have to make that argument to the judge. By the same token, you could argue that nothing is fair use until a judge makes the determination that the use is fair use.
Re: Re: Re: Re:
No, you’ve got that backwards. Nothing is infringement until a judge makes the determination that the use is infringement.
Re: Re:
Streisand’s Recursive Fair Use Corollary?
Maybe not clueless
I can’t help but wonder if this publicist isn’t clueless at all, but in fact knows exactly what he’s doing.
It’s possible the Markson Sparks firm operates a very successful copyright trolling division in addition to their more traditional (?) publicist business.
Re: Maybe not clueless
https://youtu.be/wtXkD1BC564
Re: Maybe not clueless
Yeah, after reading the twitter exchange (and some of Markson’s feed) I got the feeling he is being deliberately obtuse.
How does fair use expire before the copy protection term. If anything the copy protection term, for news, should have expired by now (not the fair use).
Thank you for clarifying this.
I’m afraid this poor guy just trusted his lawyer who told him, “Don’t worry. I’ll take care of everything.” The same lawyer who hired a publicist halfway around the world who’s now shaking down people and making Santana look like some greedy opportunist looking to profit from someone’s killing. And I have little doubt that the publicist and lawyer will abandon him when the shit hits the fan.
Re: Re:
“I’m afraid this poor guy just trusted his lawyer who told him, “Don’t worry. I’ll take care of everything.””
Now there’s a red-flag statement, especially coming from a lawyer.
Markson logic
“I defrauded some gullible news organizations. Those acts legitimized the fraud, and requires me to continue defrauding others.”
Seems straight out of the patent troll playbook.
Honestly my concern is that certain media outlets will take these licensing demands and use them as excuse to attack the witnesses credibility. Yeah it may still on video but that won’t stop them from trying and they tend to be very good at getting people to believe what they are spewing.
Max is a well known self-promoting wanker here in Australia. Mostly we just ignore him. I suggest everyone else does the same. Don’t give him oxygen.
Making money and enforcing restrictions based on works derived from dead people? Sounds like business as usual for copyright enforcers and fanboys.
So if fair use can't expire...
…and the only thing the copyright owner controls that does expire is the copyright itself, does insisting that fair use has expired mean he has placed the copyright in the public domain…?