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Avoiding copyright catastrophe

In August, media giant Viacom received a black eye when it requested the removal of a clip from its Web Junk 2.0 show posted on YouTube. Its problem was that the clip was of a campaign commercial for a North Carolina native Christopher Knight. The YouTube clip was posted by Knight himself. In essence, Viacom had requested Knight to take down his own commercial from his own YouTube account.

In October, Prince, along with Universal Music, became the subject of jokes for filing a takedown notice against a 29-second clip of a dancing baby that happened to have “Let’s Go Crazy” playing in the background. The video, which had only been seen a few dozen times before the takedown, became an instant Internet sensation and was re-posted on many different sites.

Finally, in December, month, professional photographer and photojournalist Lane Hartwell found herself the subject of a severe backlash after she obtained the removal of a parody music video by San Francisco music group The Richter Scales because the video displayed a photo she took for less than a second.

In each of these cases, the copyright holder - a media giant, a record label and a photographer, respectively - was so zealous in defending their copyright on the web that they accidentally created situations worse than the actual infringement. In all three situations, the value of the work protected is, most likely, eclipsed by the public relations damage that the enforcement caused.

It is important for copyright holders, especially those transitioning more of their work to the web, to learn from these cases and figure out how to avoid similar copyright catastrophes in the future.

Fortunately, while defending copyright on the web is a fairly nuanced art, the most important rules are simple enough to understand.

The biggest mistake

While the cases above are all different in the nature of the work involved and how it was used, the fundamental mistake was the same: attempting to stop every single unlicensed use of content.

In the Viacom case, the takedown notice was likely prompted by an automated content detection system and executed with little human intervention. Since Viacom contracts out much of its copyright protection it is probable that no one at Viacom was even notified that the notice was filed. If they had, the situation might have turned out differently.

The Prince case, although similar in the use of a detection system, seems to have been supported by the artist himself or at least a representative of him. Prince is well-known for seeking to stop virtually all uses of his image and/or music, even going so far as to target fan sites that post his lyrics and images.

The Hartwell case, on the other hand, did not involve any form of content detection. However, when Hartwell did discover the use of her photo, she initially clamored for attribution. She filed a takedown notice against the video when they refused to pay her for the use. Hartwell is still attempting to obtain payment from the group and the matter is ongoing. However, public opinion of Hartwell, which was initially strong due to her desire for attribution, has turned hostile as she has continued to push the matter.

In all of the cases above, the copyright holder either created a system designed to stop every single reuse of content or actively sought to do so themselves. In each case, the video involved was eventually re-posted. Although in the Hartwell case, the new video had the offending image removed and added a full credit roll for the other photos used.

However, the most important element is that, in every case, nothing was gained by the controversy. In the end, the only damage done was to the reputation of those filing the notices.

Avoiding the nightmare

Although such situations can be very costly, they can also be easily avoided if copyright holders follow a few simple rules:

• Expect Some Reuse: When you post content to the web, you can expect that there is going to be some reuse of it. Fortunately, most of it is not harmful to your rights. Prioritize the uses you fight by targeting commercial use first and the plagiarized/unattributed use second. Personal, attributed use of your work should be a low priority and perhaps not a priority at all.
• Take a Personal Interest: The temptation on the web is to automate as much as possible. But reliance on automated methods of content protection make such embarrassing situations unavoidable. Similarly, reliance on a contractor or other third party to handle enforcement increases the odds of an ugly copyright dispute. It is important that either you or a representative of yourself, such as an attorney, evaluate each case of suspected infringement and decide the best course of action.

Know Your Rights: It is important that you are fully aware of your rights over your own content. This means, for one, keeping track of the content that you license and use that belongs to others but also being aware of the limitations that fair dealing (or fair use in some countries) places on your rights. Doing so not only prevents potential legal issues, but reduces the likelihood of finding yourself at the center of a copyright storm.
• Respect Free Speech: The web values nothing more than free speech. If you attempt to stop any use of your content that can be seen as a personal expression, not only is there a question about fair use or fair dealing, but the Internet as a community will likely not stand for it. It is important to support creativity, even if it is hostile towards you and uses a small portion of your work.
• Learn Web Protocols: The web has a different set of standards for content reuse than the physical world. Links are the currency of the web as they serve as a means of attribution and as a way to repay the content creator by helping them obtain a higher search engine ranking. You can learn these protocols by looking at other web publishers, especially popular blogs, and studying Creative Commons Licenses and the effect they have had on the web.

Conclusions

The web is a dangerous place for copyrighted material and, at times, an even more dangerous place in which to enforce your reproduction rights. If users of the web do not agree with your copyright policy or enforcement methods, they will make their displeasure public and, often times, draw more attention to the reuse than it would have received otherwise.

The simple truth is that protecting copyright on the web is a nuanced and delicate process and applying traditional copyright values to the Web, without at least some translation, is inviting disaster.

Although learning the rules for dealing with copyright infringement on the web can be a long and costly process, it is far less expensive and time-consuming than cleaning up a copyright disaster after it has already happened.

As with anything else in life, a little bit of prevention is worth a world of cure.

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