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: licensing@jukinmedia.com
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.
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Filed Under: camera, copyright, falling from plane, licensing, pig, viral videos
Companies: jukin media, youtube
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Oh man! I can’t wait for PETA to jump in and file a copyright lawsuit on behalf of the pig.
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Sublicensing
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Re: Sublicensing
And that is fine (or at least, lawful)... if you own the copyright. Which, as is the entire point of the article, this person certainly doesn't.
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Re: Re: Sublicensing
It proves that the answer to the headline's question is "yes"—you can license the video, if its copyright holder has given you the right to do that. This being somewhat irrelevant points to a problem with the headline.
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Re: Re: Re: Sublicensing
"This being somewhat irrelevant points to a problem with the headline."
Less a problem with the headline. More a problem with the fact that someone HAS tried to license a video they don't hold the copyright over.
The headline is fine. The answer should be "Hell, no". Even under copyright law.
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Remember when Getty claimed in court that shaking down people for license fees to use public domain images was just a-ok... and won?
Good times. /s
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Re:
Nope.
I can't remember when Devin Nunes stood up for the first amendment either.
Getting old does have some benefits.
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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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Yes you can, if you're the licensing agent of the copyright holder. That's pretty standard. But in this case Jukin media likely isn't a licensing agent because they've no idea who the copyright holder is. Whoever found the camera isn't the copyright holder, because you can't gain copyright on a work simply by finding a copy. Be an interesting business model for a lawyer there, finding the actual owners of those videos and seeing if they're interested in shaking down Jukin Media for license fees. :)
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Re:
Dropping a camera from a plane shows no evidence of creative contribution. If they had searched for the camera afterwards, that would be a different thing, showing they had intent to drop it. But nope. Too late now.
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Re: Re:
I can see an argument where unintentional creative contribution would be sufficient. As an example, you are taking a picture of your parents on a street, and while preparing the shot, you accidentally take a random picture that shows a crime in progress. You did not intend to take that picture, but you did, and should therefore hold the copyright on it.
In this case, the person is clearly filming for several seconds before the camera goes free fall, so at what point does the video move from copyrighted by the photographer, to not copyrighted? I can press Record on my video camera and not be behind it, yet I still own the video since it was my direction that recorded whatever scene the camera captured. Whether it was intentional or not.
Of course, I am not a lawyer, so anything resembling common sense here is sure to be ignored by most in the Justice System.
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Re:
But the problem here, aside from assuming that everything must be owned, is that automatic assumption that there even IS a copyright to own. Almost as if a copyright is a soul that we can't even imagine doesn't intangibly exist alongside some corporeal body. Sometimes things are born without souls.
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Re: Re:
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Re: Re:
"But the problem here, aside from assuming that everything must be owned, is that automatic assumption that there even IS a copyright to own. Almost as if a copyright is a soul that we can't even imagine doesn't intangibly exist alongside some corporeal body."
That argument is a fundamental truth about MOST of what is called "Intellectual Property" which the copyright cult - the industries linking their entire business model to the control of the immaterial - would prefer to see buried.
First of all, not all things must be owned. This is self-evident unless you really want to get into a debate about who owns the air and oceans - the net outcome of which would be catastrophic no matter HOW it went.
Secondly, you can't "own" information as you can physical property. You can at best, if you are the sole possessor of it, refuse to share it.
Once you've shared the information, however, your control is gone and the person who shared it now owns their own copy of that information.
Copyright was written to deny the laws of reality by turning something completely imaginary into something governing every aspect of normal behavior. Practically speaking that makes copyright a religion - which goes a long way towards explaining why so very many copyright defenders end up sounding like 16th-century catholic priests condemning the protestants who feel other people than the clergy should be free to read the bible.
Copyright is the modern day equivalent of blasphemy law. Nothing more. And deserves as little consideration.
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This is another of those easy questions made fucked up by copyright enforcement. Anyone else remember the Strike 3 case where the judge had to remind the plaintiff that yes, you have to hold the copyright to something in order to sue for it? John Smith pissed his pants arguing otherwise in that thread...
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"Respective... Discoveries" are for patents, not copyrights
What would be interesting is if the owner of the camera came forward and sued Junkin for copyright infringement. The only way I could see Junkin spin their defense is saying something like how the copyright clause in the constitution permits people to hold exclusive rights for a limited time to their discoveries: "The person discovered the camera and the footage. How else are people going to be incentivized to obtain footage that falls out of the sky?" The court would buy such a ludicrous argument when that person's pig starts to fly!
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Damned if you do, damned if you don't
That could certainly be a funny case, as it seems that Jukin would be screwed whatever way you tried to spin it. Arguing that the person who found the camera was the copyright owner almost certainly wouldn't likely fly(unlike the camera), and if they aren't the copyright owner then they can neither demand payment for use of it nor hire someone else to issue those demands on their behalf.
Even if the camera owner wasn't the owner of the copyright in question(in all likelihood there wouldn't be a copyright due to how the footage came about), neither the person who found the camera nor Jukin would have ownership and therefore licensing rights either, which would likely result in some rather awkward moments in court.
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Re: Damned if you do, damned if you don't
Possibly, but I think we'd have to wait to see the result of the Amazon vs. Oracle argument.
We're in a timeline where Oracle insists that it can use Amazon's shit for free but will scream and cry because they think Google is using theirs. Hypocrisy is the bread and butter of those who wield IP law and enforcement as a weapon.
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Re: Re: Damned if you do, damned if you don't
It's Oracle. A surprise would be a timeline where they aren't.
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As a tangentially related question, what are the legal implications of copyfraud? Suppose for the sake of argument that (1) the work is not covered by copyright, at all, for the reasons that Techdirt outlined above and (2) an entity that should be aware of this nonetheless sells "licenses" to the work. By the assumptions given, no user of the work can be guilty of infringement, even without a license. However, can the unscrupulous "licensor" be subject to any legal judgment (whether civil or criminal) for selling these bogus licenses? What if the licensor offers to sell such licenses, but nobody falls for it? Is the licensor still subject to legal jeopardy, or are they safe as long as nobody believes them?
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Re:
It was already tested in court, and the answer seems to be "NO"; mostly because apparently no-one has standing to sue.
See the opening paragraph here: https://www.techdirt.com/articles/20190329/15352641901/getty-images-sued-yet-again-trying-to-license -public-domain-images.shtml
Basically, it's entirely on you to see through their fraud and decide if you want to take a risk that maybe you are mistaken.
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Imaginary Physical Rights
Archives are claiming imaginary "Physical Rights" to license works in their collection.
Search: "physical rights holder"
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Highsmith v. Getty
https://www.plagiarismtoday.com/wp-content/uploads/2016/09/Getty-Highsmith.pdf
In any event, this premise of Plaintiffs’ case – i.e., that there is something improper about the imposition of license conditions on the use of copies of public domain works – is fundamentally flawed. As courts have long recognized, any member of the public (including businesses) may use public domain works “at will and without attribution,” Dastar, 539 U.S. at 33-34, and is free to impose conditions on the use of particular copies of the works. See, e.g., United States v. Elcom, Ltd., 203 F. Supp. 2d 1111, 1131 (N.D. Cal. 2002) (noting that, when a publisher “take[s] a public domain work and ma[k]es it available in electronic form, and in the course of doing so has also imposed use restrictions on the electronic version,” the publisher does not thereby gain an intellectual property interest in the work but has gained “protection against copying that particular electronic version of the work.” (emphasis added)).
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Re: Highsmith v. Getty
This argument can fly if the original work (the video footage) is in the public domain, but not if it's copyrighted.
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United States v. Elcomsoft Co. and Dmitry Sklyarov
https://h2o.law.harvard.edu/cases/4497
UNITED STATES v. Elcomsoft Co., Ltd. and Dmitry Sklyarov
The indictment alleges that "[w]hen an ebook purchased for viewing in the Adobe eBook Reader format was sold by the publisher or distributor, the publisher or distributor of the ebook could authorize or limit the purchaser's ability to copy, distribute, print, or have the text read audibly by the computer. Adobe designed the eBook Reader to permit the management of such digital rights so that in the ordinary course of its operation, the eBook Reader effectively permitted the publisher or distributor of the ebook to restrict or limit the exercise of certain copyright rights of an owner of the copyright for an ebook distributed in the eBook Reader format."
https://www.geek.com/news/elcomsoft-found-not-guilty-548080/
ElcomSoft found not guilty
By 12.17.2002
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Deceptive Business Practices
Search -
Highsmith v. Getty "deceptive business practices"
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Some day those judges, jailers, attorneys and cops will go through everything they've put others through.
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C'mon
The creative input of person who found the camera was to choose to buy that property.
Simple.
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Well, a license is fundamentally an agreement that the licensor will not sue the licensee. It's similar to a quitclaim deed, in that there is not a need that the licensor have the right to sue anyway, just that they're agreeing not to if they can.
However, under Brulotte v. Thys Co., 379 U.S. 29 (1964), it's unlawful for a patent holder (and most likely a copyright holder) to license beyond the term. That is, once the underlying right expires, so does the license, because it's no longer needed; the licenses can now use the thing that was protected by the right freely. The rationale is that it would be anticompetitive to allow the monopoly to extend beyond the term. (Note that most courts dislike Brulotte and allow work-arounds, like a license that lasts longer than the term because it doesn't hinge on the licensing of the short-lived right.)
So I would be inclined to say that you can license a copyright you don't hold. The licensor is promising not to sue the licensee for infringement, but they're not claiming that they could sue if the licensee copied the work without a license. This is caveat emptor for licensees; they're not being cheated per se as the license is enforceable, but they need to think about whether they really need a license and whether it will really help them.
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Re:
So I would be inclined to say that you can license a copyright you don't hold. The licensor is promising not to sue the licensee for infringement, but they're not claiming that they could sue if the licensee copied the work without a license.
... and like that, every copyright extortionist just had to go change their pants as an entire new field of copyright extortion opened up.
Pretty sure that making a threat with no legal basis is generally considered extortion and/or fraud, and 'pay us for that thing and we promise we won't sue you' when you don't actually own the rights to said thing would(or at least should, but given the insanity of copyright...) likely fall into one or both of those categories.
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Licenses as fraud or extortion
In the lawsuit against Book Dog Books, Wiley and others got 39 M$ for the usage of 116 books, while not providing any proof that they had actually acquired the copyright on them. Book Dog complained about this and lost because it didn't oppose such "told you so" early enough:
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Re: Re:
Building on cpt kangarooski's theory, I guess it would depend on how you phrased the threat, er, license:
"Pay us this much and we promise not to sue you for infringing any copyright we may hold on that item."
I'm not actually claiming anything with the above. All I'm saying is that if I have a copyright on that item, I won't sue you for using it. It just so happens that I don't, so if you pay, thanks a lot sucker!
(and yes, it's totally messed up that doing such a thing might be legal)
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Re:
That's like saying armed robbery is only a crime if you actually have a bullet in the gun.
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Licenses as insurance
I see that on their home page they boast:
Does a 95 G$/y company like Comcast/NBC care about paying the authors? Of course not, they only want to avoid expensive lawsuits. When they buy such "licenses" they are buying an insurance against lawsuits, which gives them enough plausible deniability to redirect them to Jukin media in most cases. (Surely there are indemnification clauses and whatnot attached.)
If a lawsuit goes badly, Jukin might go bankrupt but the big bucks are safe and another fake licensing company can arise.
Jukin has registered almost 800 works, it will be interesting to see how many registrations are untruthful.
In the only court case I could find, Equals Three, LLC v. Jukin Media, Inc., 139 F. Supp. 3d 1094 (2015), Jukin lost on almost all counts and interestingly failed to prove they own the copyrights they claim:
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Given that it looks like a human started the filming, at least everything up to the dropping should definitely be under their copyright, and probably everything thereafter.
Has anyone argued copyright possession of a video camera shot passed between different people?
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