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.

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  • identicon
    Anonymous Coward, 22 Apr 2015 @ 8:22am

    What happens when copyright becomes the culture, rather than the works they are supposed to represent?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2015 @ 9:59am

      Re:

      You supply the question as a hypothesis, but copyright is already a culture rather than a vehicle for the generation of works!

      reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 22 Apr 2015 @ 8:24am

    Publicist logic

    "I badgered some companies into paying up to make me stop bothering them, so my legal arguments must be correct."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2015 @ 8:56am

      Re: Publicist logic

      doubt he had to badger them. This benefits the media companies... so why not pay, it's win win for them.

      reply to this | link to this | view in chronology ]

      • identicon
        Mad Max Markson, 22 Apr 2015 @ 9:14am

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Apr 2015 @ 5:29am

          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%.

          reply to this | link to this | view in chronology ]

    • icon
      Blackfiredragon13 (profile), 22 Apr 2015 @ 11:11am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 22 Apr 2015 @ 8:25am

    Uh oh...

    Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.

    And now you've exposed his (patent pending) business method and his trade secrets! Prepare for further lawsuits!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 8:27am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    LauraTee (profile), 22 Apr 2015 @ 8:37am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 22 Apr 2015 @ 8:59am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    mcinsand, 22 Apr 2015 @ 8:59am

    Markson's Resume

    I can't help but wonder if Markson's resume lists previous experience with either The SCO Group or Prenda Law.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 22 Apr 2015 @ 9:12am

      Re: Markson's Resume

      I can't help but wonder if Markson's resume lists previous experience with either The SCO Group or Prenda Law.

      Oh come on! He's just a fan creating a derivative work on their efforts. They should sue him!

      reply to this | link to this | view in chronology ]

  • icon
    Bamboo Harvester (profile), 22 Apr 2015 @ 9:09am

    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?

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 22 Apr 2015 @ 9:25am

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Apr 2015 @ 10:02am

        Re: Re: Hmm..

        You both forgot the first step. You first have to sell your soul to Satan.

        reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 22 Apr 2015 @ 10:20am

        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?

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 22 Apr 2015 @ 10:41am

          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.

          reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 22 Apr 2015 @ 10:55am

            Re: Re: Re: Re: 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.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Apr 2015 @ 11:06am

              Re: Re: Re: Re: Re: 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?

              reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 22 Apr 2015 @ 11:07am

              Re: Re: Re: Re: Re: 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.

              reply to this | link to this | view in chronology ]

              • icon
                Bamboo Harvester (profile), 22 Apr 2015 @ 11:35am

                Re: Re: Re: Re: Re: Re: 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.

                reply to this | link to this | view in chronology ]

  • identicon
    Just Another Anonymous Troll, 22 Apr 2015 @ 9:13am

    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!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 9:17am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2015 @ 9:23am

      Re:

      Those are some nice hypothetical situations that have nothing to do with the actual situations being discussed.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2015 @ 9:23am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 22 Apr 2015 @ 9:28am

        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.

        reply to this | link to this | view in chronology ]

      • identicon
        cpt kangarooski, 22 Apr 2015 @ 9:31am

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    RD, 22 Apr 2015 @ 9:20am

    "Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. "

    Actually, copyrigts no longer expire either. Not anymore.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 9:26am

    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".

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2015 @ 9:40am

      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.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 22 Apr 2015 @ 10:43am

      Re:

      4. Even if his preposterous logic was correct, he would not be the person to determine when the video is no longer newsworthy. Since there is no law regarding this (because it's preposterous), it would be up to a court to make that determination.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Apr 2015 @ 11:08am

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          AnonyBabs, 23 Apr 2015 @ 10:14am

          Re: Re: Re:

          No, you've got that backwards. Nothing is infringement until a judge makes the determination that the use is infringement.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Apr 2015 @ 12:48am

      Re:

      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".
      Streisand's Recursive Fair Use Corollary?

      reply to this | link to this | view in chronology ]

  • icon
    sorrykb (profile), 22 Apr 2015 @ 10:12am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 10:15am

    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).

    reply to this | link to this | view in chronology ]

  • icon
    sorrykb (profile), 22 Apr 2015 @ 10:18am

    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.

    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.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 22 Apr 2015 @ 10:45am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Dave Cortright (profile), 22 Apr 2015 @ 10:24am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 11:48am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 5:19pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2015 @ 7:12pm

    Making money and enforcing restrictions based on works derived from dead people? Sounds like business as usual for copyright enforcers and fanboys.

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 22 Apr 2015 @ 8:36pm

    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...?

    reply to this | link to this | view in chronology ]


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