Tag Archives: Viacom

Can you copyright your name and face?

That’s the question behind a class-action lawsuit aimed at video game publisher Electronic Arts. Sam Keller, a former quarterback at Arizona State, is bringing the case claiming that Electronic Arts profited from the use of his image and the images of other college athletes in their NCAA Football and NCAA Basketball video games. Amateur rules prevent the use of athletes’ names in commercial products but the games have the same team colors, team numbers, body-types and even athletic moves of the actual college athletes.

The case if blowing up beyond the right to use images of college athletes in video games. A ruling in the case could set a First Amendment precedent defining when a person’s right to control his image trumps the free-speech rights of others to use it.

An early attempt by Electronic Arts to have the case thrown out was rejected by US District Court Judge Claudia A Wilken. Judge Wilken argued that Electronic Arts did not sufficiently “transform” the images into a work that would qualify as free speech.

Major media companies, The Motion Picture Association of America, the Gannett Company, ESPN, Viacom, are lining up in support of Electronic Arts.

Keller has support from significant organizations too including the players unions for professional baseball, basketball, football, hockey and soccer. Each has filed a brief supporting Keller. Keller also has the support of the Screen Actors Guild, the AFL-CIO, and the American Federation of Television and Radio Artists.

Nathan Siegal, who represents the media companies has said…

Treating the right of publicity as if it were a copyright – as if you could copyright your name and face – goes too far, and it would give people too much power to control the First Amendment speech of others

Representatives for the athletes and other famous figures say Electronic Arts has gone too far. Duncan Crabtree-Ireland, the general counsel of the Screen Actors Guild said

The real life consequence would be that anybody making anything other than a television commercial or a print ad – what is very clearly commercial speech – would essentially have the right to use people’s names and likenesses in those projects without any consultation.

Some scholars believe this case could eventually land in the US Supreme Court.

The Tricky Task of Defining “Fair Use” in an electronic world

Copyright-imageAlmost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

YouTube will face its first copyright infringement lawsuit

The first copyright infringement suit against YouTube is coming to trial. The case was brought last July by Robert Tur, a helicopter pilot/journalist known for his famous footage of O.J Simpson’s low-speed Ford Bronco chase in 1994 and the brick attack on Reginald Denny during the Los Angeles riot of 1992. It is exactly this footage that is at the heart of Mr. Tur’s lawsuit against YouTube. The suit alleges hundreds of copyright infringements and hundreds of illegal downloads through the YouTube site.

In an interesting development, Viacom and NBC filed a “friends-of-the-court” brief on May 4th asking the court to deny a motion filed by Google to dismiss Mr. Tur’s suit.

YouTube close to preventing copyrighted content uploads

I’ve been watching with great interest how YouTube handles accusations that it knowingly hosts and broadcasts copyrighted material. It now seems that Google, which acquired YouTube in November of 2006, is close to releasing technology that will help eliminate video uploads which violate intellectual property laws. Claim Your Content is Google’s name for filtering technology that will give content providers and publishers an easy way to alert YouTube that copyrighted material has been uploaded to its site.

But is a major showdown brewing? This March, Viacom sued Google and YouTube for $1 billion citing massive and intentional copyright infringement. Will this case ever go to court? Google has begun making revenue sharing deals with its major content contributors. If Google and Viacom can agree on revenue sharing terms then Viacom’s copyright infringment suit probably never goes to trial.

I don’t think there’s any question that YouTube built its vast community, and its brand, while knowingly broadcasting copyrighted material. Now, under Google’s dominion, the site is rapidly making attempts to satisfy copyright regulations.

Going forward with revenue sharing seems like the smartest way out of the copyright problem. However, will major media companies like Viacom seek compensation for past broadcasting of their content – broadcasting which made YouTube one of the top destinations on the Internet and that led Google to purchase the company for 1 billion dollars?

By October of 2006, before Google acquired it, an estimated 90 percent of the more than 100 million videos watched daily on YouTube violated copyright laws, according to Josh Bernoff of Forrester Research.

I’m sure Google/YouTube will work out revenue sharing with its major content providers going forward. The questions to me are:

  1. Will they compensate (or be forced, through the courts, to compensate) for that initial decision to broadcast copyrighted material in the first place?
  2. How will they compensate for that initial decision to broadcast copyrighted material?
  3. Can you create a business that essentially gives everyone else’s products away, and then sell it to a megacorp for $1 billion, and not pay some legal penalty?

Follow Up: This article from the Washington Post, published on March 24, 2007 Our Case Against YouTube outlines Viacom’s case against YouTube. It was written by Michael Fricklas, general council for Viacom.