Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing
from the that's-not-how-the-law-works-at-all dept
Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott had apparently brought on a publicist, Max Markson, who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a "fair usage fee." As we pointed out, this was idiotic -- and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that "copyright experts agreed" that they had a point. That's flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson's interpretation of copyright law is laughably wrong.Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law is there such a thing as a "fair usage fee") and rather insisted that he's obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He's also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:
“Any footage has to be owned by somebody. It’s not like it’s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it’s the same in this case.”The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means "in the public domain." It does not. Things in the public domain don't need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That's why there is no such thing as a "fair usage fee." Second, the idea that "fair use doesn't really apply to images" is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn't even remotely arguable. Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.
He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.
“Fair use doesn’t really apply to images,” he said. “There’s a fair use argument on the video, but there’s a very clear copyright on the use of the photographs.”
And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:
The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. The Guardian's reporter, Jon Swaine, apparently called up Markson's employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.
Asked why they believed the footage needed to be licenced, Nissen Gray said: “We have discussed with our copyright attorneys and ‘fair use’ doesn’t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.”I'm curious who these "copyright attorneys" are, because they're not just wrong, they're so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn't seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he's wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.
Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to "cash in." However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what's being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers, and they quite likely will hit back seeking a declaratory judgment for non-infringement.
* In further conversations, Markson also mocked me for caring about this, talking about how he's "closing deals daily!" as if he's proud of the fact that he's directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.
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Filed Under: cease and desist, copyright, fair use, journalism, max markson, reporting, walter scott
Companies: markson sparks, the guardian
Reader Comments
The First Word
“Markson logic
"I defrauded some gullible news organizations. Those acts legitimized the fraud, and requires me to continue defrauding others."Seems straight out of the patent troll playbook.
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Publicist logic
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Re: Publicist logic
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As you say: why not pay, it's win win for you.
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Re: Publicist logic
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Uh oh...
And now you've exposed his (patent pending) business method and his trade secrets! Prepare for further lawsuits!
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This is Really Impressive
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Re: This is Really Impressive (he should be in sales)
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Follow the money
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Markson's Resume
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Re: Markson's Resume
Oh come on! He's just a fan creating a derivative work on their efforts. They should sue him!
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Hmm..
If I (or anyone) shoots a video such as this one and wants to make money from it, how would you go about it? If you just tell the cops you have it they'll likely seize it and destroy it. You can't post it publicly without it ending up like this one - you don't get any money. If you try filing a copyright for it, the prosecutors will seize it as soon as they hear of it.
What's left? Sell rights to it to a media outlet?
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Re: Hmm..
I mean, if you want to profit off tragedy.
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To me, the essential point is that you can't prevent fair use (and that's a good thing!), but fair use doesn't stop you from monetizing.
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I catch all kinds of drug deals and the like on the cameras that face the road, I may give a call to the local news and see if they'd be interested in the footage. Although it's mostly State Police that patrol this area, and they really come down hard on anyone criticizing them, so it may not be worth persuing.
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or
whats stopping you from getting copyright law changed to the way you'd like it to be?
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It never hurts to ask, but I would be surprised if they're interested. There's very little that's newsworthy about random drug deals on the streets. If you happen to catch a drug deal that goes disastrously wrong, though, you may have something.
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As to the random deals, every so often the local news does a "community interest" bit that shows how downhill the area has become.
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It is doubtful that media outlets engaged in news reporting that relies in part upon the video will any time soon lose the benefit of fair use under US law, but it should be borne in mind that the relevant US law is not an international norm. Moreover, uses that are not associated with actual news reporting do not enjoy the scope of protection under the fair use doctrine as is accorded the news media.
IOW, it is not at all difficult to envision factual scenarios where the use of the video, including stills, could be deemed by a court to be outside the scope of fair use within the US. For example, start printing t-shirts with stills taken from the video for sale on-line and you might very well discover one such scenario.
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Also, Fair Use is not a defense, it isn't infringement at all.
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That's not true. Those types of uses are just a bit of non-binding guidance. The real issue is whether the use is fair. The four factor test is the minimum level of analysis used to determine that. Since the illustrative examples you mention are merely that, uses have easily been found to be fair other than those listed, and uses of the types listed have been found unfair at times.
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Actually, copyrigts no longer expire either. Not anymore.
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Maybe not clueless
It's possible the Markson Sparks firm operates a very successful copyright trolling division in addition to their more traditional (?) publicist business.
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Thank you for clarifying this.
I'm afraid this poor guy just trusted his lawyer who told him, "Don't worry. I'll take care of everything." The same lawyer who hired a publicist halfway around the world who's now shaking down people and making Santana look like some greedy opportunist looking to profit from someone's killing. And I have little doubt that the publicist and lawyer will abandon him when the shit hits the fan.
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Now there's a red-flag statement, especially coming from a lawyer.
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Markson logic
Seems straight out of the patent troll playbook.
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So if fair use can't expire...
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