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:

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
    David, 24 Feb 2020 @ 4:06pm

    I think the situation is pretty clear.

    Assuming that the original owner of the camera has no valid copyright interest, clearly it is up to the recipient to charge whatever they want to make that video accessible, because they are in possession of the media with the file on it.

    So far, so good. Except that possession/access is not the same as copyright. To license out copyright, there must be creative contribution. This can arise from cutting/editing the video in a creative manner. Since there is no other prevailing copyright, the editing then makes you sole copyright owner entitled to all proceeds.

    You may feel inclined to call bullshit on this, but it's actually the ongoing revenue model for "revised" editions of Beethoven, Bach and older. It's not that long ago since I sent back a score of Bach's ubiquitous BWV565 (Toccata and Fugue in D minor) because the small print by Peters demanded that I make no modification to the music and print an acknowledgment on any concert flyer. The editor added registration suggestions. Not even individual registers, just the part of the organ you could be using.

    Playing them unmodified was not an option anyway since I was adapting to accordion, so the score went back and I made sure to tell both bookstore and publisher what I thought of that kind of condition. Seriously.

    But yes, this kind of shit does fly and pay. Add some ridiculous but arguably creative new element to something in the public domain, and you are sole copyright holder of the modified original, and if nobody else can access the unmodified original, that's it. Whether a court sees it in the same way, depends on the particulars of each case, but who wants to get dragged before court over something silly like that?

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