Viacom Still Not Getting It -- Files Bogus Takedown And Kills Some Free Transformers Buzz

from the you're-doing-it-wrong dept

Fri, May 14th 2010 7:34am — Dennis Yang

Ben Brown and Micki Krimmel stumbled upon the filming of Transformers 3, and from their office window, watched as cars were thrown across the air for one of the scenes. That's not something you see every day, so they broke out their cameras and filmed what they were watching. Not surprisingly, they posted their videos to YouTube to share what they had seen. Brown's blog post about witnessing the filming was filled with exuberant excitement, including the YouTube video. Except, now if you click play on that video, you get this:

Yes, it appears Paramount promptly filed a DMCA takedown -- which seems like a fantastic way to kill excitement for the movie. According to the takedown, Brown's video "matched third party content," which, of course, is impossible since Transformers 3 has yet to be finished (let alone released) and obviously Brown took the video himself. The filming took place in a public alley, so anyone around is totally free to take pictures or video and share them.

Now, not only is it ridiculous to claim that these videos are covered under Paramount's copyright, it's hard to fathom why Paramount would want to bother quashing these videos at all. After Brown and Krimmel posted their videos, entertainment blogs picked the story up and started to build buzz about the movie. Isn't that a good thing? Personally, I really disliked the last Transformers movie, and this latest round of DMCA shenanigans isn't doing a very good job of convincing me to give the next installment another look.

On top of that, this is Paramount we're talking about -- which is a subsidiary of Viacom. Viacom, of course, is in the middle of a big lawsuit with YouTube, where one of the things Viacom has been claiming is that Google should just know what content is infringing and which is not -- and yet, here, again, Viacom is falsely claiming that videos infringe. This was actually a big problem in the lawsuit, where Viacom had to withdraw clips from the lawsuit, after it was determined that Viacom had uploaded them on purpose. Also, after being sued for bogus takedowns earlier, Viacom came to an agreement with the EFF that it would carefully review content before issuing takedowns. So, with all of that combined, you would think that Viacom would be a bit more careful than to take down videos taken by others of something happening in public.

In the meantime, to make things even more confusing, while Paramount issued a takedown on Brown's video, it apparently left Krimmel's up... for now, despite being basically the same thing. You can see that one (while it lasts) here:

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Filed Under: copyright, transformers, videos, youtube
Companies: google, paramount, viacom, youtube

35 Comments

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crade (profile), 14 May 2010 @ 7:52am

We are seriously in need of some sort of punishment for making people takedown content that you have no right to.
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John Gardner (profile), 14 May 2010 @ 8:05am

Re:
actually, we need to fix the law that allows them to take the content down in the first place.
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Rajio, 14 May 2010 @ 8:09am

quid pro quo
Since Krimmel owns that video they took, and all rights therein, does that mean that they now hold the copyright to transformers 3? can Krimmel issue a takedown notice if the movie now contains this scene? This seems to be Paramount's plan
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Anonymous Coward, 14 May 2010 @ 8:26am

If it was done on public property and someone else filmed it, that person's film should be in the public domain. You don't get to control what others can film on public property, don't like it, find your own private property to film your movies on.
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Anonymous Coward, 14 May 2010 @ 8:27am

Re:
errr.... not in the public domain, but the copyright of the other film should belong to that other person who filmed it * Sorry
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DH's Love Child, 14 May 2010 @ 8:35am

Re: quid pro quo
"can Krimmel issue a takedown notice if the movie now contains this scene"

I wouldn't think so. The scene in the movie would have to be using the actual footage that Krimmel shot. Since the studio was filming with their own equipment simultaneous to Krimmel, they would have the copyright on their footage independant of Krimmel's
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Jupiter (profile), 14 May 2010 @ 8:35am

I'd post the Picard facepalm, but Paramount probably claims ownership of that too. In fact they own this post because I used the word Picard.
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Anonymous Coward, 14 May 2010 @ 8:40am

Re: Re:
Some things don't belong to you, and its not in your rights to share them. Some things should be taken down.

This is not one of those cases however.
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imbrucy (profile), 14 May 2010 @ 8:57am

Re:
This is incorrect. They filmed it with their cameras, therefore they hold the copyright to the footage. However the footage that Krimmel filmed with his camera is copyrighted by him. Same event but each set of footage has it's own copyright.
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Michael, 14 May 2010 @ 8:58am

Re: Re: quid pro quo
Absolutely, but by Viacom's rationale, it is perfectly ok for Krimmel to issue a DMCA takedown when he sees the movie uses this footage. The fact that he has no copyright claim is apparently not an issue as long as you are filming the same thing at the same time.

The DMCA should have some sanctions against completely bogus takedowns issued.
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Anonymous Coward, 14 May 2010 @ 9:13am

Re: Re:
I know, I corrected it in the comment below.
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Audrey, 14 May 2010 @ 9:29am

Shoot in private if you don't want anyone to see it. They probably don't care if people film or not, they now have created a controversy, and something for people to talk about, thus more hype for the movie.
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DocMenach (profile), 14 May 2010 @ 9:52am

Re:
More hype yes. Except instead of "Wow, check out this Youtube video of the new Transformers, isn't that cool", the hype is "wow, those guys are jerks".
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Michael, 14 May 2010 @ 10:45am

Shame we can't organize and stop purchasing any of their products for a month or so. They may change their attitudes when they're going broke.
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Micki Krimmel, 14 May 2010 @ 12:57pm

Re: Re:
Filmed by HER! *waves*
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teknosapien, 14 May 2010 @ 3:49pm

Boycott
thats it
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Vince, 14 May 2010 @ 6:04pm

Re: Re:
Yes, the person who filmed the event has a copyright in their footage, but the performers also have a right to their performance, and in all likelihood, they have assigned that right to Viacom, which is now exercising their right to issue a takedown notice.

If an author were to write a book that included excerpts from another work, that author would have a copyright interest in his work, but that would not absolve him of infringement if his work includes copyrighted material.
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Rekrul, 14 May 2010 @ 8:50pm

Re: Re: Re:
Yes, the person who filmed the event has a copyright in their footage, but the performers also have a right to their performance, and in all likelihood, they have assigned that right to Viacom, which is now exercising their right to issue a takedown notice.

There were no performers in the video, only an FX crew tossing a small car down an alley.
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Graham, 15 May 2010 @ 12:28am

Re:
Do the people issuing the takedown not have to declare, under penalty of perjury, that they represent the owner of the copyright? If so, as the copyright here belongs to the person who filmed the 'public' event not to Paramount, is the person issuing the takedown not committing perjury which is a criminal offence?
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The Groove Tiger (profile), 15 May 2010 @ 3:11am

Re: Re: Re:
"Some things don't belong to you, and its not in your rights to share them. Some things should be taken down.

This is not one of those cases however."

And the burden of proof should lie on those that make the claim that "your video should be taken down", not getting basically a FREE "take it down" pass and then leaving the entire burden of defense to the, in many cases, rightful owner of the video.
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Ralph-J (profile), 15 May 2010 @ 3:30am

Copyrights applicable to film sets?
Don't film makers have copyrights over the film sets they create?

Otherwise, what would prevent low-budget film crews from following other crews around, in order to use their explosions, scenes etc. for their own purposes?

I was once in a film park that offers create-your-own-film afternoons for birthdays. They wouldn't let us shoot films on official film sets that were used in films, because these sets were copyrighted. Might have been contractual issues though...
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Catherine B, 15 May 2010 @ 10:14am

I'm with those who say that it should be explicitly against the law to issue bogus takedown notices, and that there should be stiff penalties for doing so.

@Ralph-J: This was filmed in a public street, not a set built by Paramount. Therefore, they have no copyright over it. If we start practicing the rule you suggest, nobody who lives, walks or drives down a street segment that has been filmed will be allowed to publish film or photos of the filmed area until all those who have exploited it commercially have been dead for at least 70 years.
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Catherine B (profile), 15 May 2010 @ 10:19am

Clarification:
I meant to say that Paramount has no copyright over the street in which they filmed the sequence.
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Mark L, 15 May 2010 @ 10:53am

While the performers [and yes the FX crew do count as performers, as it is their talent that is making things happen] do have copyright over their performance, they can only maintain that control/ownership in a CLOSED/PRIVATE VENUE. This was on a public street, so anything they do is fair game for bystanders to photograph or film.

There is a second part to this, in that you have control over your own personal image, and that no one can use your image for commercial purposes without your permission. So in theory the people in the video could request a take down, if it was being used for commercial purpose. As this video is not being used for commercial purpose, there is no problem

Viacom/Paramount is clearly in the wrong here. The lawyers/executives that file these obviously false claims should be charged with fraud. [as they are misrepresenting ownership of the material in question]
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Martin O'B (profile), 15 May 2010 @ 11:28am

Re: Copyrights applicable to film sets?
If the film makers have copyright over their sets, that would only mean that you can't physically reproduce the set. Filming something happening ON the set (a video audiovisual reproduction of an event) is totally different from making a physical copy of that environment.
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Dave, 15 May 2010 @ 11:30am

Gets worse.
Not sure about the States but in the UK, we are free (despite recent efforts by UK police to make up new laws as they go along) to film/video or take pictures on the street. For some company to try and claim copyright on video that was shot in a public area and owned by somebody else and, furthermore, get it taken down, is surely despicable.
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David Spark, 15 May 2010 @ 12:25pm

Why do the "They still don't get it" stories persist?
I don't think they have any rights under DMCA on this one since they didn't create the content and it was in a public space. I have more on this here including a video of me on TV talking about the Viacom/YouTube case and links to the tons of vitriolic comments left by YouTubers furious at Viacom. Warning, lots of profanity.
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Anonymous Coward, 15 May 2010 @ 1:19pm

Call the video anything except "Transformers 3" and they can't touch it.
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John, 15 May 2010 @ 3:59pm

copyright theft - simples
there was no contractual relationship giving Ben & Micki's work to Paramount?
The equipment was owned by B & M?
they chose how & when to film something in a public place? there was no reason why paramount would expect it not to be visible by the public?

surely it is simple.

Paramount are trying to steal someone else's work _ and should be prosecuted with all the enthusiasm aggression and exageration the film industry love...
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mashiki, 16 May 2010 @ 5:18pm

Re:
There's already a segment in the DMCA for a punishment, on filing fake takedown notices. The problem is literally no-one has used it, this would be a good time to start.
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nasch (profile), 17 May 2010 @ 8:28am

Re: Re:
No, I don't think it's perjury to do this. There are penalties defined for this in the DMCA, but as mentioned it's never enforced and is much less severe than perjury.
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nasch (profile), 17 May 2010 @ 8:32am

Re: Re: Re:
Besides there not being any performers in this scene, what right to their performance do they have? Copyright? Copyright covers something put down in tangible form. If I understand right, they could have copyright over a *recording* of their performance, but not the actual performance. For example, an actor can't sue another actor for copying his performance.
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nasch (profile), 17 May 2010 @ 8:35am

Re:
There is a second part to this, in that you have control over your own personal image, and that no one can use your image for commercial purposes without your permission.

In the United States, that is absolutely false, certainly if you're a public figure. Ask any paparazzi.
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nasch (profile), 17 May 2010 @ 8:37am

Re:
The DMCA allows them to touch it even if it has nothing to do with anything Viacom has ever done. They could issue a takedown notice of a video of a blank wall with no audio, and if you don't counter-notice the provider would have to take it down. And if you do counter-notice, maybe it will stay up, but nothing will happen to Viacom.
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Anonymous Coward, 18 May 2015 @ 12:28pm

Re: Actor copyright in performance
In the US, the idea of actor's copyright in their performance is entirely new and very controversial. It has been found to my knowledge in a single case in the US 9th Circuit Appellate court, and there's no statutory language directly expressing this copyright.

Also, it's not the case that a single element of a work being under copyright to another entity means that that entity has total control over the work. It depends very much on how much of the work consists of such elements, to what purpose they appear, the overall nature of the work, how the work is made available (commercially, for free), etc. Taking a video of a public street that just happens to contain a copyrighted element and making it available for free is pretty close to the golden case. Imagine if you couldn't post a pic of yourself in Times Square because the picture incorporated a copyrighted element from a billboard or sign. That's the legal theory you are proposing.
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