C3 Patent and Intellectual Property Law

Nov042010 | Steve O'Donnell

Your videos, YouTube, and Web clip shows

In it’s never ending quest to find content that is cheap to produce, some networks have been finding some of the strangest and funniest clips on YouTube, Break.com, and similar websites and building shows such as Web Soup (G4) and Tosh 2.0 (Comedy Central) around them. Do the creators of the clips have an action for copyright infringement?

This is one of those questions that doesn’t have a great, easy answer. There are a few prongs that need to be considered before suggesting a course of action.

The first thing to do is look at the agreement that YouTube (or another upload place) requires users to accept.

YouTube’s terms, at Paragraph 6-C gives them the right to sublicense any videos to anyone they want. So if YouTube has licensed a particular video to Web Soup, then the creator of the video might not be able to do anything about the broadcast.

If, for some reason, that isn’t a problem (maybe the infringer hasn’t licensed the video from YouTube, or maybe the video was posted as an imbedded .avi or QT video on an independent web site), then the creator would have to determine what damages would be available. That will mostly depend on whether or not the work was registered so that statutory damages would be available. Most people that aren’t producing commercial video (and even a lot that are) simply don’t register their copyrights. If that’s the case, all one could win in court would be actual damages and profits, and an injunction. For most works it might not be worth pursuing an action beyond an angry letter or two. . . speaking strictly about the financial possibilities. If it was registered so that statutory damages are available, which could run as high as $150,000 plus legal fees, then the case is much more attractive financially.

Then, we have to look at what defenses the other side has and estimate how good they are. The most likely defenses are some flavor of “fair use,” but laches (basically that the creator sat on his rights too long to bring an action), and even an implied license might be argued. The implied license is one I’d really like to see argued from a copyright nerd perspective. Basically, the argument would be that by putting something on the internet that the creator has impliedly licensed the video to the public to use as they wish. I don’t think it would work, but I’d like to read the briefs (or have the time to research them myself).

If you have a video that you really don’t want to see mocked on Tosh 2.0, the easiest thing to do is to not upload it. If you really have to share it online, make sure you read and understand whatever terms of use you’re agreeing to by posting it. In either instance, register the copyright as soon as you can to give yourself some leverage if you do have to go after someone for nicking it. Depending on the exact facts, there might be other ways of protecting your work. The best thing to do is probably meeting with a copyright attorney to plan things so that the risk of infringement is minimized.