Can You License A Video You Don't Hold The Copyright Over?

from the copyright-v-ownership dept

A few times in the past we've discussed the differences between ownership of an original creative work and ownership of the copyright associated with that work. I'm reminded of this distinction -- which confuses the hell out of many people -- after lawyer Eric Turkewitz tweeted at me a question about who would own the copyright in this (oldish) viral video of a camera dropping from an airplane while filming, only to be discovered by an interested pig. It's gone viral a few times, and makes the rounds here and there. It's mildly entertaining.

But, what caught Turkewitz's eye is that the video on YouTube has the following description which includes "licensing information."

It says:

Camera falls from a sky diving airplane and lands on my property in my pig pen.
I found the camera 8 months later and viewed this video. For licensing/usage please contact: licensing@jukinmedia.com

If you're not familiar with it, Jukin Media is one of the biggest of a weird crop of businesses that rush in to try to monetize "viral" videos. Basically, they find various viral content and quickly contact whoever controls the video, and promise to get them money by "licensing" it for use in media. What this often means in practice -- especially with Jukin -- is that it goes around shaking people down for resharing clips of these viral videos.

Now, in some cases, there may be legitimate licensing opportunities, or potentially even real copyright infringement. However, I'm left scratching my head over the situation here. First off, the description (whether true or not), claims that the camera fell out of a plane and just landed in this person's pig pen, where it was found many months later. I don't know enough about regular property law to know if having the camera thrown from the sky onto the landowner's property -- and then left for 8 months -- means anything in terms of who owns the camera, but there's one thing that is pretty clear: the person who found the camera absolutely does not hold the copyright in the video.

A la the infamous monkey selfie case, there's a legitimate question as to whether or not there is a copyright to be had in this video -- but if there is, it's not held by the person who found the camera (and, no, we'll get it out of the way: it's not held by the pig either, as only humans and companies can hold a copyright). At best, one might argue that there's some copyright interest held by the person whose camera it used to be -- the person who dropped it out of the plane. Even that is arguable. The copyright in a photograph or video is supposed to be limited to the creative choices made by the creator. If the camera was deliberately dropped from the plane with the intention of making this video then, there's maybe a tiny sort of argument that they should get some level of copyright protection, though even then I'd argue it's fairly limited, as the creative input by that person is fairly minimal (especially once the camera is on the ground and the pig takes over).

All that is to say -- I'm not at all sure what rights Jukin has to "license" here. It can't offer a copyright license, and if it is, that's copyfraud -- claiming copyright in something it has no right to. But, of course, in this age where the RIAAs and MPAAs of the world continue to insist that everything must be covered by copyright, I imagine that Jukin has likely been able to convince lots of people to pay up because it's just easier, rather than recognizing that it has no rights to be licensing the video in the first place.

Filed Under: camera, copyright, falling from plane, licensing, pig, viral videos
Companies: jukin media, youtube


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  1. identicon
    cpt kangarooski, 25 Feb 2020 @ 1:37am

    Well, a license is fundamentally an agreement that the licensor will not sue the licensee. It's similar to a quitclaim deed, in that there is not a need that the licensor have the right to sue anyway, just that they're agreeing not to if they can.

    However, under Brulotte v. Thys Co., 379 U.S. 29 (1964), it's unlawful for a patent holder (and most likely a copyright holder) to license beyond the term. That is, once the underlying right expires, so does the license, because it's no longer needed; the licenses can now use the thing that was protected by the right freely. The rationale is that it would be anticompetitive to allow the monopoly to extend beyond the term. (Note that most courts dislike Brulotte and allow work-arounds, like a license that lasts longer than the term because it doesn't hinge on the licensing of the short-lived right.)

    So I would be inclined to say that you can license a copyright you don't hold. The licensor is promising not to sue the licensee for infringement, but they're not claiming that they could sue if the licensee copied the work without a license. This is caveat emptor for licensees; they're not being cheated per se as the license is enforceable, but they need to think about whether they really need a license and whether it will really help them.


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