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Is What’s Mine Also Yours?
posted June 4, 2013
When it comes to using film and TV clips, shouldn’t the answer be: Uh, no…?
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The issue of copyright of moving-image materials is, to say the least, a vexed subject. Whenever the subject is raised, reactions and opinions come thick and fast, from the impassioned to the sober, from the dubiously authoritative to the plainly confused.
Indeed – and perhaps most so, in the United States – bafflement reigns over the protections, allowances, and loopholes of copyright as provided – or not provided – by statutes and case law.
European and other countries seem to be better organized around the thorny issue. But considering those is for another day.
In the US, it is not surprising that discussions of copyright are impassioned among those who archive, preserve, restore, and present film, television, and other forms of moving images – or, clips from them, of varying lengths and forms of acknowledgment of those who have produced them.
Unsurprisingly, postings to YouTube, and its ilk, come front and center in any exchanges. How does YouTube get away with it? A reasonable question. The likeliest answer – again, a topic for another day – seems to be a mixture of the company’s odd claim of being removed from the posting process, and the thicket of half-resolved or plainly unresolved issues relating to copyright.
Also unresolved are such questions as these: In making a work that uses clips from films or TV shows, what qualifies as “fair use”? If someone posts to YouTube material that they did not produce, and perhaps does not even acknowledge the producers, is it OK for film and TV makers to poach it and use it, again without acknowledgment, let alone obtaining producers’ permission or paying them licensing fees? What is and is not included in the category of “public domain” – works with no remaining or asserted copyright?
Do companies that make and issue restored versions of films and tv programming have copyright of their products? You might think the answer is obviously yes. But the issue is debated, and legal weighing of the question provides no clear-cut answers. Without such protection, does it make much sense for any organization to go to the trouble of making restorations if they don’t have some say in the uses made of their restorations? When it comes to copyright and “fair use,” should restorations be viewed differently from new or unrestored films that have not become freely available by passing into “the public domain”?
That point has been raised recently on the AMIA-L listserv, maintained by the Association of Moving Image Archivists, where copyright issues often come up.
On the listserv, Dennis Doros, head of restoration house, Milestone Film, wrote: “You can’t copyright restoration work, only the content. I can remove every scratch from Casablanca, but that doesn’t mean I can copyright the film. … Only added content can be copyrighted.” Restoration publishers who sought to assert copyright “lost spectacularly in court” in the 1960s and 1970s, he added.
In the United States, the U.S. House of Representatives Committee on the Judiciary has begun a series of hearings designed to lay the groundwork for a complete overhaul of copyright law. Announcing them at an event at the US Library of Congress to mark World Intellectual Property Day, the judiciary-committee chairman Bob Goodlatte, a Republican from Virginia, said: “The goal of these hearings will be to determine whether the laws are still working in the digital age.”
Not, is the ready answer; and, congressional hearings or not, all the confusion seems unlikely to find resolution, any time soon. In the meanwhile, interested parties don’t lack for opinions. On the AMIA-L listserv, something of a brawl has been taking place over the issues, claims, and some injudicious or ill-considered comments about companies that issue restored versions of old films, whether or not from the public domain, and then find clips, or even whole films, posted to YouTube, without their permission.
In the AMIA-L debate, reason has often exceeded civility, but passionate commitment has been evident both from producers and non-producers of moving-image products. The postings of a few contributors, whether with a financial or devotee’s stake in the game, serve well to illustrate the issues and their seeming current intractability.
Here’s some of what David Peck wrote during the AMIA-L debate, lightly edited and touched up in subsequent exchanges with Moving Image Archive News.
There has been a lot of back on forth on this board on what is “fair use,” what is “public Domain,” and who owns what. As a rights holder, some of the attitudes from people who don’t own rights towards those of us that do have been frustrating, to say the least.
In addition to the Merv Griffin Show library, my company, Reelin’ In The Years Productions, also own the rights to 20,000 hours of music footage from around the globe; and as a copyright holder I got really tired of seeing my footage posted on YouTube especially by idiots that post our produced documentaries in their entirety and act like they produced it.
I realize that there are so many hours in a day but I decided to start aggressively taking down our footage for two reasons: (i) it’s not theirs to post; and (ii) because of the mentality of people who think everything is fair use by limiting the outlets from which they can get the footage; that makes it that much harder for them to steal it.
And, yes, I said “steal.”
A perfect example of this is a few weeks ago I got an email from a producer for a local news station in Chicago who saw an interview we had with Adam West and Bruce Ward (Batman & Robin) from the Merv Griffin Show in 1966, and he actually complained that he couldn’t take it from YouTube because we had put our Web address across the center of the screen, which of course is precisely why we did that.
In the past few weeks I have removed over 700 illegal postings of material from YouTube and I would love nothing better than to give you fellow rights holders the easy information on how to do it yourself for your property … [with] the simple form you need to fill out (and I do mean simple) so you can start to remove your footage.
I realize that we as rights holders can’t stop the current attitudes that we as copyright holders own nothing and the material is owned by the world; but at least collectively we can make a dent.
I want to leave you with three separate comments that I received after I had YouTube take down my footage. These are perfect examples of the attitudes that we face every day.
Here’s an email we received today because I took down footage of John Coltrane that we released on our Jazz Icons DVD. For the record, to produce that DVD, we paid a large advance to his estate, not to mention all of the publishing as well.
“Your ruining the free flow of information by getting all these vidios deleted, Reelin’….STOP IT! You have all the legal rights to do so, but it”s B.S! You had NOTHING to do with the creation of this music”
This is from a outraged woman who was upset that I removed over 30 different performances she posted of the Bee Gees from our archive:
“Who do you think you are are .. the OWNER of ALL the music in the world. Many people just want to share some old videos”
Here’s my favorite from a guy who posted two full Radiohead concerts from our archive that were filmed in 2006 & 2001:
I fully respect that the videos you are blocking on YouTube are yours to uphold the copyright for, and I completely agree that copyright has to be upheld, but your current removal method is going to potentially remove one hundred hours of Radiohead footage I have uploaded for people to enjoy for free.
As you can see, people just don’t get it, and YouTube has created a generation of people who feel they’re entitled to our rights and that we’re the bad guys if we try to stop it. I for one am tired of it and I want to help those who want to remove their footage from YouTube.
It’s interesting to have the perspective of someone with content they are trying to protect. I fully support this in principle, and I think we have a serious problem now that “the public” seems to think they are entitled to any content for free (either via YouTube or other sources). This even applies to those watching network TV shows via the Internet. As I constantly remind people: If nobody pays for content it will cease to be produced. I really do wonder where people think this stuff comes from!
But some postings on YouTube, specifically, seem kind of benign and I’m not sure where to draw the line. I have personally been delighted to find, for example, old cartoons from the 60s that someone posted. My interest was simply to remember an amusement from my childhood. I have no idea if these cartoons are available anywhere for purchase, or if I would have chosen to buy a DVD. Similarly, there are music postings which are available nowhere else and, in fact, prompted me to seek out and purchase recordings that I liked. So there are cases in which no real damage is done, or a sale might even result.
I would never complain if a rights holder removed something, but I just don’t know how to balance these considerations. Perhaps it would make sense if sites like YouTube were subject to royalty fees similar to how music licensing is done through ASCAP and BMI. I suspect they would claim the cost is too high (similar to internet “radio”). I think the most effective means to make the public understand why this issue matters is for artists to speak out. People seem more sympathetic when the content creator explains that they cannot continue to create if their work is not paid for!
David Peck responded (23 May 2013):
I completely understand the idea of seeing something from your childhood (like an old cartoon) but my main beef isn’t with the fan boy or fan girl ’cause that’s how I started myself, but rather with the producers and directors who take the stance that everything is fair use or public domain. Too many times a director or producer will go to YouTube and take the footage that someone has posted illegally and use in their production.
A perfect example of this is about a year ago I was watching a morning (network) talk show and I saw that they used some of our Chuck Berry footage from 1965 that they took off YouTube for a piece on Brian Wilson. To their credit, when I called them on it I got my normal license fee and we’re friends and do lots of business together but think of all the times I don’t get to charge my normal license fee because I don’t know it happened.
If I can remove my content from You Tube then it makes it more difficult for the director or producer to steal my footage and it forces them to go to a company like mine to properly license the footage.
I think that honestly what all of us who own content (and yes even including the owner of those cartoons you spoke of) need to do is look at it from this perspective: As long as there are producers or directors who will try to claim everything is fair use or public domain then make it harder for them to get the material in the first place.
I started this whole process in March of 2012 when we got the Merv Griffin Library because I know that so many directors, producers, and researchers use YouTube sometimes as the only place they go to look for footage. So I wanted to set up a YouTube channel to promote the show.
But when I started to look on YouTube I noticed that there were at least 400 segments from the show that had no business being there. Prior to doing this when we searched “Merv Griffin” or “Merv Griffin Show” we would be pages and pages down; but now that I’ve taken all of it off, we’re the first items you see when you search.
This of course means that when someone in the industry is looking for Merv Griffin Show footage they find us right away. We’ve already done quite a few licenses because we are now so easy to find.
In an earlier (10 May 2013) post, Peck had provided more details of his company’s purchase:
When we acquired the rights to The Merv Griffin Show in March of 2012 the library had never been properly catalogued and when we went to the storage facility all we could see from floor to ceiling were 2 Inch Tapes, 1 Inch tapes, Umatics, and both beta & digibeta tapes. To date we’ve done 1600 episodes from 1965-1986. Over the last year to get the library transferred it has cost me in excess of $100,000 easy. I made this investment of time and money to make the material available to professional directors, producers, researchers, & clearance companies, not to have some person merely “fair use” it.
My situation with The Merv Griffin show is a drop in the bucket compared to the many archive houses around the world that also have to invest the time and money to preserve their precious footage or audio. … To say that this material has already been paid for is just plain inaccurate.
Onlookers to the copyright debate, as it applies to moving-image works, may well exclaim, as one AMIA-L contributor has, that “the copyright law is a mess, and needs to be fixed.”
How to resolve quandaries, in the meanwhile? To begin with, lawyer up, is the wise counsel of Ted Langdell, of flashscan8.us, a film-transfer business in Marysville, California, about 130 miles northeast of San Francisco: “Be prepared to employ a knowledgeable and experienced intellectual-property (IP) attorney in each jurisdiction to help you with clearing and negotiating licenses and staying out of trouble with estates or IP rights-holders. It’s a lot of work, but it can be done, with enough effort and when needed, money.”
[In archiving, preservation, and restoration, as in so many other realms of information and media, copyright is the most vexed of subjects. There’ll be more, in these pages. Probably, much more. – ed.]
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