Matthew B. Harrison
Senior Partner
Harrison Strategies

It is important to know more about intellectual property law than just enough to avoid litigation. Disputes involving intellectual property aren’t always played out civilly within the established legal system. Brawls are erupting in the Wild West of social networking, where threats of litigation don’t have much standing and unconventional is the nature of attacks.

As described in a previous article (A Lesson from the NJ101.5 Case.), a radio station got hit with a copyright infringement lawsuit because it used copyright protected images, stripped the identifying information of the photographer from the image, and posted them on its website inviting listeners to download and alter the images.

The station argued that its usage of the image was in the capacity of “news reporting” — a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use (thereby excusing their behavior from infringement liability). While “news reporting” is in fact a justification for copyright infringement – most cases in which news reporting is argued as a fair use defense fail because it is often misapplied – such as in this instance. The Court disagreed with the assertion that the radio station’s usage was news, ruling that news organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.

This was a major blow to the faulty assumption relied upon by most news outlets – that any use of material not owned by the station is automatically considered to be fair use and therefore excusable. The court padded the effects of this decision by relying on the fact that the station’s usage was alleged to be commercial in nature and the station did not refute this allegation; meaning that if the usage is commercial (by proof or omission of opposition) fair use will not be an accepted defense to infringement.

What does this mean to radio station owners and licensees? It subjects them to potential liability for copyright infringement, regardless of their knowledge or intent, should they use material that is not owned or licensed to them for such use. Or in other words – the fair use exception is not universally applied to radio stations just because they claim the usage is news. However, unlike in the previous scenario, it isn’t always litigation about which a station, host, or network should be concerned. Sometimes negative publicity can be worse.

In a recent case, a Denver country music station allegedly took 21 concert photos from a competing radio station’s Facebook page and used it on its own page without permission from the competing station or the photographer. Despite alleging all of the necessary elements to copyright infringement, the photographer is not in a position to initiate a copyright infringement lawsuit. So instead, he’s taken his fight to the “streets” of social networking and it seems to be working.

Scott D. Smith, a professional Colorado photographer, took photographs at a Jason Aldean concert. As per an ongoing seven-year arrangement, Smith got credentials to the concert from the radio station, and in exchange gave these photos to KYGO-FM to put on its website and Facebook pages, while personally maintaining ownership of the copyright to the images. This is not an uncommon arrangement for radio stations to make such trades with professional photographers for credentials, advertising, and semi-exclusive usage rights while the photographer maintains the copyright for the images. Most radio stations strapped for cash these days do not have it within their budgets to spend actual money on photography.

Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), one cannot actually sue another party for copyright infringement unless the owner registers the work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages.

Statutory damages are prescribed amounts that a judge can determine the value of each infringement to be without the owner having to prove any actual damages.

If a copyright is not registered within three months of initial publication, or before the date of the infringement, in this case a photographer would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.

Under the theory of statutory damages, assuming that the owner of the work has registered the copyright with the copyright office prior to infringement, if the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement will be between $750 and $30,000. However, if the court determines that the infringement was committed willfully, the court may increase the award of statutory damages to a sum of not more than $150,000 per instance of infringement. This is the source of the big money from copyright infringement litigation. Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful. This is to inspire attorneys to represent starving artists as clients when their rights have been trampled – even though their client cannot pay for services in advance of settlement or verdict.

Ultimately, this Denver photographer did not register the images for copyright protection before the infringement occurred. This means that he is not eligible for statutory damages per instance of infringement, and all attorneys’ fees in the collection of these damages. This has made his finding an attorney who will take this particular matter on contingency nearly impossible — as the actual damages wouldn’t be enough to warrant an attorney taking a matter unless he was retained on an hourly basis — as opposed to a contingency basis.

This is another example of the importance of registering one’s creative works for copyright protection. Whether it’s one show or a catalogue of shows, the owner of the work should register it for copyright protection. All of the necessary forms and submission of file information are available at www.copyright.org.

While Smith, the photographer in the case cited above, has a legal recourse, for whatever reason, he hasn’t proceeded as such at this time. Instead, he took matters into his own hands and contacted the station manager on the phone to voice his complaint. However, Smith says it did not rectify the situation.

According to Smith, the station manager apologized, told him the image would be taken down, and offered him free advertising as compensation. This was a good move on the part of the station manager to rectify this obvious problem.

Smith rejected this offer based upon the premise that he didn’t want the other station, KYGO-FM, with which he had a seven-year working relationship to think that he was supporting their competition by advertising with them. Instead, he requested what he considered fair value for the use of the images — between $200 and $1,000 per image totaling around $10,500 in damages. Why he wasn’t offered the ability to resell the advertising is outside my scope of knowledge, however this could have been a probable solution.

In copyright infringement litigation that doesn’t involve registration prior to the infringing behavior, it is necessary that the injured party prove the amount of actual damages (and any profits) suffered by means of the infringement. This is a very difficult task, in almost all cases.

For Mr. Smith, his arrangement with the original station was not monetary in nature. It certainly had monetary value, but did not literally involve actual dollars exchanging hands. So even though, Mr. Smith has been published by national magazines and often licenses these types of images to various clients for these prices, it would be difficult – if not impossible – to prove a realistic amount of actual damages that would inspire an attorney to take this case on contingency (for a percentage of the proceeds).

Of course, if the copyright is registered prior to infringement, the copyright statute presumes a larger amount of damages, and also includes that the infringing party will cover attorneys fees.

For whatever reason, the radio station determined that it had no responsibility to compensate him and they rejected his offer of $10,500.

While I can speculate as to what their motivation for arguing this would be, Jeff Wilks, CEO of Wilks Broadcasting, the company that owns the radio station accused of allegedly infringing the photographer’s copyright, said in a previously published article that they did not know the images were protected by copyright, and that once they were informed of the infringement, the images were removed. Unless a photographer proves otherwise, there is not an assumption of actual damage unless it can be proved that there was malicious intent.

Smith alleges that his copyright was stripped from the allegedly infringed upon photos, however it isn’t that clear. Upon my own investigation, it became apparent that the copyright notice was never attached directly to the photographs, but instead were placed as captions next to each photograph as they appeared on Facebook. The act of saving the photos separated the photos from the copyrighted images thereby only strengthening the station’s argument that they did not intend on separating the copyright images directly or maliciously.

Section 1202 of the Copyright Act makes it illegal for someone to remove “copyright management information” from a photo to disguise the infringement when used. It originally was only applicable to digital images with the copyright management information either embedded within the file or written upon the image displayed in the file. However, it has recently been interpreted as applying to print photos. The fines start at $2,500 and go to $25,000 in addition to attorneys’ fees and any damages for the infringement.

A claim under this section of the Copyright Act, while seeming appropriate, will probably not be successful because the photographer would have to prove that the radio station willfully stripped the copyright information from the photo, and considering that it is stripped automatically during the saving process – willful stripping is a difficult argument to make.

Under the old paradigm, the fact that Smith has rights but doesn’t want to pursue them on his own dime, the radio station would be free from litigation, thereby furthering the belief that any usage is fair usage. However, Smith doesn’t seem to be going away.

Instead of hiring an attorney and pursing the station legally on his own dime, Smith has started to generate negative publicity for the station in an attempt to shame them into apologizing for allegedly stealing his property and paying him for what he alleges to be rightfully his. Photography blogs and the twittersphere are buzzing with this story and it’s gaining momentum. Smith has become a figurehead for photographers who had their rights regularly infringed upon yet were unable to continue with legal remedies because they did not register the copyright prior to the infringement.

Smith explained that he took his claim to the listeners and advertisers of the station, sharing the details of his story, and further alleged that some of them had withdrawn financial support of the station. Smith further claimed that the station had acknowledged that his contacting advertisers was interfering with their contracts and that such behavior potentially opens him to liability of his own.

A request for comment from Wilks Broadcasting went unanswered.

I have written in previous articles that if artists don’t give value to work they put online, either by charging for access or making licenses available for purchase, they cannot argue that there were actual damages (lost income) when the content is used without permission.

This situation could sound a bit like extortion, fueled by the hostility of others who also don’t have much of a legal leg to stand on due to lack of merit or financial resources. However, Smith’s argument claims that he suffered actual damages. He licenses his images for the amount of money that he is seeking from the station in damages. While the radio station probably wouldn’t have purchased the right to use the images (and therefore would not be the direct cause of lost sales), if Smith could prove that his revenue is derived mostly from photo licenses, and that their actions injured his agreement with the original radio station; an agreement that has value, he may have a stronger case than the station realizes. Ultimately, it would be up to a judge to determine with broad discretion.

Regardless of how this particular situation resolves itself, there are two takeaway lessons to be learned from this scenario:

First, creative professionals need to register their intellectual property for copyright protection. It doesn’t matter the form of the media – audio, video or text. If registered property is protected prior to infringement occurring, they will be able to obtain legal assistance on contingency, as the damages will be prescribed by statute as will the payment of all attorneys’ fees by the infringing party.

Second, should someone claim that a radio station’s or broadcaster’s actions infringed upon their copyright, they should remove all of the alleged infringing content until they can clarify the details of the scenario. Litigation shouldn’t be the only concern as negative publicity is just as real and easily spread by the internet.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, Mass. –– Good talk radio hosts draw upon multiple sources for material. News, media, pop culture and their own lives and interests are standard sources for talking points. In today’s digital world two pressing legal questions should be on your mind:

1) How difficult is it to infringe upon someone’s copyright when borrowing a concept, the goodwill, or even actual pieces from someone else’s work?

2) How difficult is it to protect your own work from having others use too much?
Copyright protection is only available for the expression of ideas and not the ideas themselves. This is known as the idea/expression dichotomy.

The “idea” is to, say, do a show on conservative political issues. The idea, furthermore, is to spin (or “position”) an issue in a particular way as to highlight a thought-provoking point. The protectable “expression” is the recording of the segment in which you make the point. While you may have been the first person to make such a point, only your exact expression is protected and other –– perhaps not as talented –– hosts can run with the idea their own way as they see fit.

The purpose for this distinction is to balance the First Amendment goals of free expression with the copyright goals of advancing the useful arts and sciences by affording protection to the creators of such work.
This idea/expression dichotomy is ultimately the crux of the analysis regarding potential copyright infringement.

It is very obvious in a painting. If you paint a picture of the sun setting into a lake by your house, you cannot prevent others from painting the same scene. However, you can prevent someone from taking your original painting and turning it into a poster for sale.

In photography, a recent case decision also makes this concept seem obvious. In recent news, photographer Ryan McGinley, known for work that presents a lush vision of youth culture, was sued by another photographer who accused him of relying too heavily on her work for his inspiration. Janine Gordon filed suit against McGinley saying that at least 150 of his photographs are “substantially based” on her work and are violations of her copyright protections. She lost because artists can have no claim to ideas such as an interracial couple kissing, a person gazing skyward with outstretched arms, or a man riding on a spotted horse.

In radio, it should be equally as obvious despite talent wanting to think that there are less potential iterations for ideas as there are in painting or photography. Unless someone is using the exact words –– using the same ideas even in extremely similar ways will not be enough to evoke copyright infringement. Of course, this goes both ways. If a host is using a magazine article as part of his preparation, and recites the article word for word –– even only in part –– there could be infringement (though, there may also be a fair use defense, but that is for another article). On the opposite side, if a website reposts content from your show on their page, it too could be infringement.

Understanding the idea/expression dichotomy will allow you to use material without infringing upon others’ protected content while also knowing when usage of material is infringing your rights.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, Mass. –– When choosing to use non-original materials as a portion of programming, it is important to make sure that such usage falls squarely within the accepted affirmative defense of fair use.

A New Jersey federal appeals court recently reinstated a copyright and defamation lawsuit against New Jersey talk radio station, New Jersey 101.5 (WKXW-FM) and its former PM drive team “Carton & Rossi.” Craig Carton currently co-hosts the WFAN, New York morning drive show “Boomer & Carton.” Ray Rossi hosts an evening show on New Jersey 101.5.

The case was simple. New Jersey Monthly (NJM) hired a photographer to take a photo of Carton & Rossi to accompany an article to be published. An unknown employee of WKXW-FM then scanned in the image from NJM and posted it to the WKXW-FM website, among others. The image, as scanned and posted, cut off reference to NJM’s story title, and eliminated the gutter credit identifying the photographer. The station invited visitors to alter the image and submit resulting versions. In all, the station posted 26 of these submissions. At no time did the station or the hosts ask the photographer for permission, and as a result –– the photographer sued.

How could a radio station be liable for using a photo of their talent? They don’t own the copyright to do so. Here, the magazine didn’t own the copyright either. Their original contract stated that the photographer retains the copyright.

The appropriate language of the Copyright Statutes contain a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship and research. The court must consider the following four factors when determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The station argued that their usage of the image was “news reporting” –– a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use. The court disagreed. News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.

In order for a work to be determined fair use as news reporting, the news outlet must create a new work that, in part, comments on the original work and uses such pieces of the original in the process.

If the radio station is the only outlet breaking this news, and no similar broader news coverage or editorial commentary existed, such as this case, it severely undercuts the argument that such news reporting gives any new meaning to the original image. In such a scenario, the court determined that it seemed more likely that the station did not want to go to the trouble of creating its own eye-catching photo but simply appropriated the image for the same purpose.

Lastly, the court determined that most commercial usage couldn’t be considered fair usage. The station never contested that its usage was commercial, and therefore the court found it so, thereby negating their fair usage assertion.

While the posting of the 26 altered versions of the original image may fall within the court’s view of news reporting –– as it would be adding new meaning to the original image, both literally and figuratively –– the court concerned itself with the initial posting which did not fall within such an affirmative defense.

Additionally, the radio station argued that their usage was news reporting, but never argued that such a usage was non-commercial in nature. Considering that radio stations are inherently commercial enterprises, effort needs to be spent on the assertion that any particular usage when used as content, whether deemed to be infringing or not, is not the sole contributing factor into whether or not a station is commercially viable. Obviously, quality content –– as a whole –– dictates marketability, but the argument needs to be made that no particular piece of content is necessary to commercial marketability.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, MA — On May 16th, at 6:30 am Stefanie Gordon boarded a Delta flight from New York to Palm Beach. Somewhere along the flight, out the window of her airplane seat, she took a photo, tweeted it to friends when she landed, and then headed off to spend the day with her father. Gordon’s now-famous photo of the space shuttle Endeavour soaring through the clouds got her an overwhelming amount of attention but also landed her smack in the middle of an ethical and legal debate inherent to the future of the internet.

The photo was viewed nearly one million times, and has been showed by hundreds of news outlets around the world. She was paid by precisely five news organizations.

This was not the first time this happened. Janis Krum landed in the middle of the digital rights debate in 2009, when a passenger aircraft made an unexpected landing in the Hudson River. Krum took the one photo on his iPhone and instantly tweeted it from the ferry he was on a few feet from the plane, before helping passengers off the floating aircraft. He earned virtually nothing from his famous photo, which was copied and used by both commercial and private publications around the world.

While some think everything digital on the internet should be free, commercial outlets that sell a product using images and videos should feel compelled to pay for content they use.

This affects the broadcaster in two ways: first, there is potential liability for re-posting content that is found online; second, you need to protect your own original content before posting it online. And, yes, in today’s world of media convergence, photography falls into the elemental arsenal of radio broadcasters!

The mere act of taking a photograph grants the photographer copyright in the image Sharing it on a social media sites – in theory – does nothing to limit or reduce that fundamental right. So, unless the photograph is posted with a message that says, “copy this and pass it along” the photographer would maintain the copyright in the image. This applies to photographs, text, audio, or video content.

While copyright may attach immediately upon pressing the shutter or record button, so comes with it the cloud of legal uncertainty. Professional photographers are well schooled in controlling image distribution, but in the era where “everyone is a photographer,” it is often an amateur that shakes things up.

It is happening more often than ever that an amateur takes an amazing photo and does not realize its inherent value right away. Gordon immediately tweeted it, and that just let the floodgates open. People need to realize that their work – especially that which is newsworthy – may have value.

Amateurs probably wouldn’t consider this in the middle of such excitement, but it is possible to sell more valuable exclusive rights to a news outlet, or to find an agency to do the bidding for you. The days when Newsweek and Time magazine would fight over the rights to a photo with six-figure checks are dwindling, but there is still value in exploring value ahead of publication to social media.

News outlets can publish content under the theory that it is protected First Amendment speech. However, its application as fair use is widely debated. In a situation when a news outlet has no alternative access to an important image, they would be protected by fair use. However – those cases are much rarer than one would expect.

Meanwhile, retaining copyright doesn’t mean retaining all rights. A particularly vexing problem facing users of services like Twitpic involves the ever-changing fine print in the sites’ terms of service agreements. Both Gordon and Krum used Twitpic to share their photos. Currently, Twitpics’ terms of service informs users that the firm has the right to resell any images loaded by original rights holders onto its servers. In other words, Gordon has the right to sell her Space Shuttle picture, but TwitPic does now, too. They take an unlimited non-exclusive license to use the image – and by uploading it, you give them that right.

It is inevitable that amateur users will increasingly find themselves in possession of powerful, newsworthy photos and video content… and the temptation for professionals to use them without acquiring the rights – either claiming fair use based on their being newsworthy or the belief that since it was found for free on the internet, the creator doesn’t care about their rights in it – will only lead to future liability.

A camera sees differently than our eyes do and can be used as a means to communicate a story. For most artists – the story goes beyond themselves and capturing moments from their lives and the literal content contained within the frame. The photographs no longer reveal literal truth but instead present a metaphor for a greater truth. The viewer is engaged in identifying the metaphor and appreciating the relationship that the photographer has demonstrated with the subject. This portfolio is both. However, there is a third component of this portfolio that makes it worthy of being the work product of a Masters Degree Scholar: these photographs were specifically created in such a way as to maximize a viewers engagement with these images. I applied scientific research to my photographic process – in order to maximize the portfolio’s ability to engage the viewer.

SPRINGFIELD, Mass — A key aspect of my job as a manager of talent and attorney is to development plans that not only include business and legal components but also take into account the possibility that the projects we are planning might, in fact, become successful. If the pursuit of success is what drives us – then shouldn’t we have a plan that takes the possibility of success into consideration? This is especially important when things involve other people, facilities owned by employers, components from the internet, and so many potential legal and ethical entanglements. It is amazing how often people don’t stop and consider this went entering into plans.

Consider this recent example that dominated twitter trending the past few weeks:

Rebecca Black, 13, recorded a song and music video (called “Friday”) in collaboration with a company specializing in vanity productions. Black’s parents contributed financially to the project, to ensure that they retained all rights in the song and the video, along with the original masters (as allegedly detailed in their initial contract).

While I am not privy to the specific contracts, I am confident that they were not written with success in mind. Why should they have been? This particular vanity production company had never produced a hit record or video. Their concerns likely centered on the assumption their clients – including Black and her parents – shouldn’t expect this song and video to make her a star.

As it turned out, this video did make Rebecca Black a star. With over 100 million views on YouTube in less than a month, this 13 year old and her song “Friday” was a bigger twitter buzz than the Tsunami – when the natural disaster had just happened and its aftermath was unfolding. While not all of the attention was positive, the barrage of publicity put a lot of eyes on her, including Ryan Seacrest who had Black on his radio show and later facilitated Black’s management by DB Entertainment.

In this situation – Black, her parents, and the vanity production company had contracts that were supposed to detail the rights of the parties. However, when the production company made the song available on iTunes as a download and ring tone, the Blacks threatened a lawsuit for copyright infringement claiming that only they had the rights to distribute the song. While it’s not clear if the matter will be resolved prior to a court filing, it is clear that even having a contract will not be useful if the parties don’t account for success.

How many projects are you involved in where there isn’t any paperwork attempting to detail the rights of the parties involved? If the answer is anything more than zero – then you should take some time to re-evaluate your plans.

Who owns the project? Let’s first assume that you are sole creator of the work. It’s clear that if you are using radio station facilities during time that you are being paid that your ownership of anything will seriously be questioned. But what if you are in the production room of your radio station after hours working on the tracks of a program that you want to use on your commercial website? If you are salary, is there actually an “after hours?” If you are using their equipment, don’t they have ownership interest? What if you use their phones, computers, or e-mail in the creation or production of the show? What if you are working with others? How many times has a musician/vocalist appeared on the track of another without getting compensation or credit? How many lawsuits have resulted from those appearances where no one thought about things that would arise should they be successful?

I am not suggesting that you need to have formal contracts written by an attorney for every deal that you enter into. Instead, save yourself later headaches and legal issues by anticipating problems that would arise should the project be successful and address those potential issues in advance.

NEW YORK –– Copyright law protects your intellectual property immediately upon the fixation of a creative work in a tangible form. However, in many circumstances it is desirable to additionally register your works with the United States Copyright Office; especially if you want to maintain the ability to sue for significant damages.

Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), you cannot actually sue someone for infringing your copyright until you have registered your work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages. If you do not register your copyright within three months of initial publication, or before the date of the infringement, one would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.

To see how this plays out, assume that I have created an amazing spoken-word audio program and posted it on a website without registering the copyright. Since the audio program is an original work fixed in a tangible form (a playable file) it is protected by copyright. Therefore, if someone from another website comes and copies the file and places it on their website, my copyright has been infringed. In order for me to sue, I need to register the file with the Copyright Office.

Assuming that the infringing website doesn’t have any valid defense –– such as fair use –– then I would be able to collect my losses, plus any profits that the infringer accrued by virtue of the infringement.

What are my losses? It is easier to determine the value of the loss when the content is only available by paid subscription, rather than content that is freely available. How does one prove the value of the harm? What if the infringing website isn’t profiting from the infringement? Additionally, I would end up paying my attorney’s fees.

However, if I had registered this program within three months of its first publication, then I would be able to recover statutory damages in lieu of my virtually non-existent actual damages.

If the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement is between $750 and $30,000. However, if the court determines that the infringement was committed willfully (i.e. it was taken off your website and had any identifying owner information removed), the court may increase the award of statutory damages to a sum of not more than $150,000. Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful.

Filling out the forms online can be complicated and it is recommended that you contact a licensed attorney in your state to assist with your registration process.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

NEW YORK –– Most of us have seen the recent YouTube clip of a woman falling into a fountain at a mall while texting (now dubbed “the fountain lady”). This bit of slapstick reality has attracted millions of views, many duplicates, and even commentaries, remixes and faux interviews. It’s another viral video success and those who boarded that train early are even making money from the ad revenues. But is it legal?

The background involves some mall security employees posting video footage of a fellow female employee falling into a fountain online, while sharing their own “director” commentary while they playback and repeat the video from their security office. With more than three million views in less than two weeks, it spawned many other YouTube videos with their own commentary and creativity. Radio has certainly picked up the story and generated its own share of commentary both on the air and on the web. The identity of the woman was –– at this point –– unknown to the public.

However, this changed when the employee “outed” herself as the person featured in the video. She is threatening lawsuit that someone in security should have come to her rescue instead of laughing at her misfortune. One lesson is quite clear –– it’s easy to be so consumed in our digital devices that we fail to pay attention to our physical surroundings.

Is the video considered newsworthy? The right of privacy does not apply to newsworthy events that happen in a location where the subject doesn’t have an increased expectation of privacy. While the mall is technically a privately owned place, the areas of the mall open to the public are public space for right-of-privacy purposes. Therefore posting this will not be an infringement on the privacy of the fountain lady.

But what if you had the exclusive and you post it on your own commercial website? Hopefully you are selling advertising on your own websites. However, even generally, you put it on your YouTube account as I have seen many other operators re-posting the original video with their own degree of editing, creativity and commentary. Their videos feature advertising –– not only as overlays but also as pre-rolls, requiring viewers to watch it first prior to being able to see the video.
It is a much clearer issue when an individual seeks to profit from something by using it directly in an advertisement as in using footage of a celebrity’s use of a product as if it were an endorsement. However, common use of these entertaining videos is when it’s combined with personal commentary to inform or entertain viewers/subscribers. With the YouTube example, when a video “catches fire” users have an option of adding advertising –– both as click-through overlays and pre-roll video ads –– YouTube and channel partners profit from the revenue generated.

Legality is dependent upon how the owner of the site is compensated. Passive advertising, such as banner ads that viewers are free to ignore, would not be as likely an issue as active advertising such as forcing viewers to watch an advertisement prior to viewing the main video.

Are you making money directly from the footage? Or are you making money from your commentary about the footage? Television stations show newsworthy videos of private persons and generate revenue from the ad sales during the broadcast.

One can always skip over a TV ad, or turn off the TV for a while and turn it on again. It’s more difficult to not watch a web video’s pre-roll ad if you want to watch the main video. If they are making money off active advertising, does this mean that YouTube is liable for infringement upon the fountain lady’s privacy? No. Because YouTube and other service providers are protected by the Communications Decency Act that protects such actors from state law privacy and publicity claims. However, it does not extend its protections to you, the actual content provider. If you post it and are making money from it directly, then you might be liable.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

Last month, this column detailed the four factors of the fair use defense to copyright infringement. The prior column addressed how to use the provisions of the Digital Millennium Copyright Act in order to protect your audio (and video) from misuse. Both of these articles generated enough reader feedback and follow up questions, that it seemed like a good idea to provide a summary article with some additional clarifications.

The first two, and the most straightforward, of four factors of a fair use defense to copyright infringement are:

· The nature of the copyrighted work; and
· The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

and the two that led to the most follow up are:

· The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; and
· The effect of the use upon the potential market for or value of the copyrighted work.

While there are a few published decisions outlining some of the potential interpretations of these four factors, more than likely your particular circumstances were not addressed. The application of the fair use defense is a fact specific process and even though there may be precedent, some of the courts have come to differing conclusions based upon giving the factors variable weights.

It’s easy to get caught up in the fluid dynamics between entertainment and news in this post consolidation era, and because of this, I think courts look more at the actual content of the program more than what type of program the show purports to be.

The important thing to understand about the purpose and use factor is that the current body of copyright law (both statue and case law) favors the fast and free dissemination of necessary information over any sort of commercial plundering of someone else’s intellectual property. So while your show may be considered a commercial entity, you may be granted the fair use defense if you aired a clip that furthered a newsworthy or artistic cause that was not central to the commercial nature of the show.

One could probably air a clip of Tina Fay as Sarah Palin for a segment of a program featuring newsworthy political commentary or social satire and have it be considered a fair use. However, having the clip as part of a sponsored segment of the program, would probably be less likely to be considered fair use.

The other factor, the effect of the alleged fair use on the potential market of the original, is becoming less of a factor with web 2.0 and websites like youtube. If you – a content provider (host, station, program, network, etc.) – provide free access to content that can then be easily and instantly disseminated, you are going to have a difficult time arguing that any unauthorized use limited your commercial exploitation of the market.
Especially when there are hosts and networks charging for access to the archives and/or special broadcasts on the website . There is a significant argument to be made that suggests that when a broadcast is aired without permission, destroys the marketability of these derivative works (archives).

This means that it is not in your best interest – i.e. protect yourself and the value of your intellectual property from being infringed upon and being considered a fair use – to provide a significant amount of free content unless it’s specifically as promotion of premium content that is available for a cost on your website.