The drop-and-drag availability of online material makes it oh-so-tempting to “borrow” a photo, video or article from the Web — even for professional media outlets that ought to be especially protective of copyright.
Idaho college journalist Farzan Faramarzi understandably felt violated when, without asking, a local FOX affiliate rebroadcast a clip from his YouTube-posted video. Faramarzi was the only journalist on the spot when a well-known campus preacher visiting Boise State took a swing at a student who’d approached him by surprise (the student claimed he just wanted a hug). The video doesn’t show contact being made, and police decided not to charge the preacher and declared him welcome to return to campus.
The event was newsworthy enough that KIVI-TV made an excerpt from Faramarzi’s video the centerpiece of a report on the evening news and on the station’s website.
Faramarzi protested. A representative of the station and its parent company — insisting that use of the clip didn’t infringe the student’s copyright — declined to pull the video but did give Faramarzi recognition on the web version.
Was KIVI-TV’s use of the clip defensible as a “fair use?”
The honest but unhelpful answer is, “It depends.” Fair use is always a judgment call that requires balancing multiple considerations.
That the station used a very small percentage of the original video isn’t decisive. Copyright law recognizes that you can infringe the owner’s rights if you re-use the “heart and soul” that gives the original creation its value. In this case, the altercation IS the heart and soul of Faramarzi’s work.
But copyright law also recognizes a “fair use” defense for republishing part (or at times, even all) of someone else’s work when commenting on that work — e.g., because the work has itself become newsworthy.
(For instance, when a graphic artist creates and sells a poster based on a valuable AP news photograph, that might be copyright infringement. But when a news organization writes about the photo and the poster, reproducing their images to accompany the story is a classic fair use.)
The station’s best argument for fair use is that the video actually became part of the story when, according to the KIVI report, Boise State police reviewed it in making their decision to readmit the preacher to campus. If the video itself is newsworthy for that reason, then the station has an arguable fair use defense.
One thing that doesn’t help the station at all is crediting the original source. Copyright law doesn’t concern itself with credit. Credit is a matter of ethics and professionalism (and in an academic setting, potentially one of plagiarism). But if the re-use of someone else’s property is illegal, federal law doesn’t care how — or whether — it’s credited.
What could KIVI-TV have done better?
While credit doesn’t neutralize copyright infringement, it’s the courteous thing to do, especially if it’s apparent that the creator of the original work isn’t just a hobbyist (Faramarzi maintains an active YouTube channel with more than 115 entries as a showcase for his career portfolio of videography). Asking for consent surprisingly often will result in a “yes.”
What can I do if I think my videos have been “pirated” by a competitor?
First, figure out what you want. Do you want to be paid for the work? Would a credit be sufficient? Or do you want the video taken down entirely?
A phone call to the infringing site, especially if it is an established media outlet that’s easily reachable, is the polite first step and at times results in a complete resolution. But what if the infringer won’t play nicely?
If you’d be satisfied with a freelancer fee for your “involuntary contribution,” consider simply submitting an invoice for a reasonable market rate along with a cover letter to this effect: “I’m glad you like my videos. I charge a ____ licensing fee per clip, with a 25 percent add-on for customers who don’t get consent in advance. Please remit _____ within 30 days.”
If you’re convinced that the republication is an unlawful infringement (this would be a good time to consult legal counsel licensed in your state), federal law recognizes a right to demand that the infringing content be pulled down. The Digital Millennium Copyright Act (“DMCA”) sets forth a specific process for notifying the website’s host that a page contains infringing material. This article explains the process, but in short, it requires a sworn statement signed by the copyright-holder identifying the infringing content and where it can be found online.
As a cautionary note, DMCA notices should never be sent without careful research and consideration. Knowingly misstating that a Web page contains infringing material can result in sanctions including paying the website operator’s legal fees for defending against an unfounded takedown demand.