There are two subjects we write about frequently on Techdirt that we didn't think would ever have all that much overlap: copyright
and people using their mobile phones to record events in real time
. This can cover a lot of stuff, but lately it's been getting extra attention in the world of police shootings and police protests. We didn't necessarily think these two kinds of stories would overlap very often, but when you've got video, you've got copyright. Last year, for example, there was a bit of a copyright dustup when the guy who shot the infamous video of Walter Scott being shot in the back by police officer Michael Slager, started demanding to get paid
. As we pointed out at the time, news programs using the video were almost certainly protected by fair use.
And that's still true. But... eventually this is going to go to courts. And that's especially true because of the new group of middlemen who are racing to buy up any viral video
within hours (or minutes!) of it going viral, and then trying to license it everywhere. If you follow the space, you may have heard of some of these guys: Jukin Media is the most well-known, but there are others like ViralHog, ViralNova and Newsflare. And they don't seem all that thrilled about this part of the law called fair use.
The Connecticut Law Tribune has an article talking about how ViralHog bought a viral video taken by Michael Bautista from his mobile phone during the Dallas Shootings a few weekends ago, and now lawyers are debating whether or not news programs can use such videos under fair use
. The answer should be yes, but since the situation here is a bit different than in the past, no one's entirely
The problem, though, is that there are no cases dealing with the monetization of viral videos that depict serious news.
"Will someone challenge them? That's to be seen," said Emily Campbell, who leads the trademark and copyright group at Dunlap Codding in Oklahoma. "Will someone challenge these groups who are monetizing viral videos?"
The big differences here as compared to in the past are twofold: first, now that everyone has a device with a camera in their pockets, we're seeing a lot more viral videos, so there are a lot more situations popping up that may lead to a legal challenge. The second, and more important, is the fact that there are these viral video licensing chop shops, which are proving that there's a monetary value to these videos, which could complicate the fair use calculation a bit (since one of the four factors is the impact on the market of the use).
The most on point case is probably a copyright case from 1968 about the famous Zapruder film of the John F. Kennedy Assassination. The backstory here is fairly long and complex
*, but Time Life at one point sorta had the copyright on the film, and sued Josiah Thompson for his book Six Seconds In Dallas
that used an artist's rendition of some scenes from the Zapruder film. In that case, Time Inc. v. Bernard Geis Assocs
, the district court ruled that it was fair use. So that's a point for fair use, but the details are still a bit different (it was a book that used artistic renderings of the film, for one). It was also just a district court ruling... and under the 1909 Copyright Act, rather than the more modern 1976 Copyright Act that we live under today).
I still think there's a strong fair use case for news programs using mobile phone videos. But, you know this is going to go to court eventually. These viral video companies are already making noises like traditional copyright maximalists, in which they ignore fair use and pretend copyright gives them full control over the work:
ViralHog founder Ryan Bartholomew, on the other hand, says the law is clear. "Whether a video is of a funny cat or a tragic event, the videographer owns their work and is entitled to control it," he told Fortune in July. "A viral video will always be monetized by someone, and representation can ensure a video's owner reaps the benefits rather than those who steal it."
And thus... it won't be long until one of these police shooting videos, or other viral videos of a newsworthy event, ends up in court. Hopefully fair use wins out. But, as we've seen over the years, fair use can be kind of a crapshoot when it comes to how judges feel about things.
* I couldn't come up with a way to fit this directly into the story above, but in that link there's the following amazing story about how CBS almost got it hands on the Zapruder film, which would have... made for an interesting legal test case had it happened:
Before Life had acquired rights to the film, CBS News’s Dallas bureau chief, a young Dan Rather, had informed 60 Minutes executive producer Don Hewitt that “a guy named Zapruder was supposed to have film of the assassination and was going to put it up for sale.” The best approach to acquiring the film, Hewitt decided quickly, was a bit more violence. “In my desire to get a hold of what was probably the most dramatic piece of news footage ever shot,” Hewett wrote, “I told Rather to go to Zapruder’s house, sock him in the jaw, take his film to our affiliate in Dallas, copy it onto videotape, and let the CBS lawyers decide whether it could be sold or whether it was in the public domain. And then take the film back to Zapruder’s house and give it back to him. That way, the only thing they could get him for was assault because he would have returned Zapruder’s property. Rather said, ‘Great idea. I’ll do it.’ I hadn’t hung up the phone maybe ten seconds when it hit me: What in the hell did you just do? Are you out of your mind? So I called Rather back. Luckily, he was still there, and I said to him, ‘For Christ’s sake, don’t do what I just told you to. I think this day has gotten to me and thank God I caught you before you left.’ Knowing Dan to be as competitive as I am, I had the feeling that he wished he’d left before the second phone call.”