Unlicensed Use of My Footage By CNN

[Matt Sezer]

I often shoot protests, mainly as an opportunity to practice my documentary camera skills. While I do license some of my footage from time to time, I often just end up posting it onto YouTube a week or so later and don't think much about it. So naturally, it came as a suprise when I saw 10 seconds of my footage on the CNN prime-time series Chicagoland.

 

I have no clue how my footage got on CNN. They didn't get my permission, credit me, or even notify me. I am familiar with fair use, but as far as my limited knoledge goes, it wouldn't seem to apply here. They weren't making any sort of commentary about my depiction of the event or even the depiction of the event by people on YouTube. It wasn't like the footage was shown in an overlay of a YouTube player in low resolution with on screen text saying it was from YouTube, which I see sometimes on the news. They presented my full-HD footage as if it were their own, color-corrected to match the other shots, without any credit whatsoever. The event was close to two years ago and there's pleanty of footage of it, so it's not like it was breaking news or anything.

 

I was just wondering if anybody had any recomedations as to what I should do. Do I have any rights in this situation? If so, what wold be an acceptable rate for the use of the footage? I know the rate for some PBS national programming is around $50 a second. Does this seem right?

[Adrian Sierkowski]

I would speak with a lawyer.

[Phil Rhodes]

Did you sign up to a user agreement with YouTube that allows them to make money off your footage? I have no idea, but it doesn't seem impossible. Your beef may be with them, not the broadcaster.

[Mark Dunn]

No, you don't surrender all rights when you post on Youtube. Specifically you don't give them the right to sublicense. What they can do is show ads on your video, which is quite different.

Fair use in the US doesn't cover commercial use even if it could be invoked.

Regardless of the infringement you are entitled to a fee, but a lawyer probably won't touch it unless you registered the material with your copyright office.

In the UK we now have a small claims process for copyright infringement, but I don't know about the US, sorry. You need some pro bono advice.

As to quantum, a photographer has just won a judgment against Getty and AFP for eight news pictures of $1.2M and an infringer is in no position to bargain. Needs some careful thought.

Hopefully you have a recording of the broadcast.

Edited March 11, 2014 by Mark Dunn

[Matt Sezer]

Thanks, fortunately I do have a recording of the broadcast. I just emailed the legal council for the series asking him to explain what was going on. Once he responds, I'll be in a better position to assess my options. The standard YouTube license definitely doesn't allow them to sublicense without permission.

Edited March 11, 2014 by Matt Sezer

[Bill DiPietra]

I think consulting a lawyer is a good idea, if for no other reason, to clear up the legality of the situation. But I'll play devil's advocate, here...

 

With the exception of the password protected videos, YouTube is a public, searchable site much like Facebook. I see still-frames from there on the news everyday. If a video or image is accessible through a search on the internet, isn't it fair game for use? Consider the fact that you do not even need an account to search through videos. I agree the news network should have at least thrown "YouTube" over the video, but the fact that you chose to share it on the internet - which amounts to a global audience - I think you might have a hard time saying you didn't give them permission. Technically, you were the first person to broadcast it.

 

Either way, in the future I would either password protect the videos (on Vimeo - not YouTube) or embed copyright text into corner of the frame.

[Freya Black]

I think consulting a lawyer is a good idea, if for no other reason, to clear up the legality of the situation. But I'll play devil's advocate, here...

 

With the exception of the password protected videos, YouTube is a public, searchable site much like Facebook. I see still-frames from there on the news everyday. If a video or image is accessible through a search on the internet, isn't it fair game for use? Consider the fact that you do not even need an account to search through videos. I agree the news network should have at least thrown "YouTube" over the video, but the fact that you chose to share it on the internet - which amounts to a global audience - I think you might have a hard time saying you didn't give them permission. Technically, you were the first person to broadcast it.

 

Either way, in the future I would either password protect the videos (on Vimeo - not YouTube) or embed copyright text into corner of the frame.

 

I think if you follow that argument then surely I should be able to make use of anything on CNN as I see fit? After all they were the first to broadcast their stuff? CNN is a public broadcast feed, more so than anything on the internet that goes down somewhat private wires. Surely if CNN are filling the atmosphere with their signals they will have a hard time saying they didn't give me permission to use it?

 

As the old saying goes. What's good for the goose is good for the gander.

 

Freya

[Freya Black]

Thanks, fortunately I do have a recording of the broadcast. I just emailed the legal council for the series asking him to explain what was going on. Once he responds, I'll be in a better position to assess my options. The standard YouTube license definitely doesn't allow them to sublicense without permission.

 

Yeah I would contact the people involved. They may be keen to just resolve the issue.

Otherwise, yes see a lawyer! :)

 

Freya

[Freya Black]

Not sure where you want to go with it but I would consider sending them an invoice for the amount you see fit.

 

http://jimromenesko.com/2012/08/14/tv-station-agrees-to-pay-blogger-300-after-using-his-video-without-permission/

 

http://www.dvxuser.com/V6/archive/index.php/t-268485.html?s=666bd973dbebbd227bb9a673a1a4b0ed

 

There are a lot of broadcast companies at the moment who will happily steal anything off the internet but will whine to the high heavens if anyone uses their content.

 

I feel it needs to cut both ways.

 

Freya

[Matt Sezer]

As far as fair use goes, it doesn't matter if the footage is posted publically. One can claim fair use on material from a DVD just as much as one can claim fair use on material from a pulic YouTube video. Fair use is determined upon both the intention (criticism, review, news, etc...) as well as the length of the clip in relation to both the original work as well as the work using the clip. There could be an argument made that the use of my footage is fair use, although I don't really feel that this was the case.

 

I also think still photographers get a better deal when it comes to the laws. A photo is often considered a complete work, whereas a shot in a film isn't. If they used my still photos instead of video, I might have a stronger case, since I cold say that they infringed on an entire photo, 100% of my work, compared to 10 seconds of an 8 minute video, 2% of my work.

 

Anyway, I won't really know for sure until I hear back from them, so anything now is just guessing.

 

Bill: That's a good idea about putting copyright text on my videos. I would hate doing this, as it's really annoying to viewers, but it may be what I have to do.

[Bill DiPietra]

 

I think if you follow that argument then surely I should be able to make use of anything on CNN as I see fit? After all they were the first to broadcast their stuff? CNN is a public broadcast feed, more so than anything on the internet that goes down somewhat private wires. Surely if CNN are filling the atmosphere with their signals they will have a hard time saying they didn't give me permission to use it?

 

Freya,

 

Normally I would agree but you are talking about a completely different medium. Television content has been strictly regulated for decades and the need to obtain licensing for any clips has always been clear. There is no question as to who owns what. The problem lies with the fact that the internet is still the mostly widely used & unregulated medium out there. When people are sharing and posting things that are not their own all day & everday, with no reprecussions, why should a television network face any?

 

It's not so much a Fair Use issue as it is a problem with regulation of the medium. I agree they should have given Matt some kind of credit. I'm just trying to point out that the concept of ownership on the internet is a huge gray area.

 

Matt, another method would be for you to register your work with the U.S. Copyright Office before posting it. You can do it all online here: http://www.copyright.gov/ Then, if this were to happen again, you would have clear legal action you could take.

[Freya Black]

 

Freya,

 

Normally I would agree but you are talking about a completely different medium. Television content has been strictly regulated for decades and the need to obtain licensing for any clips has always been clear. There is no question as to who owns what. The problem lies with the fact that the internet is still the mostly widely used & unregulated medium out there. When people are sharing and posting things that are not their own all day & everday, with no reprecussions, why should a television network face any?

 

It's not so much a Fair Use issue as it is a problem with regulation of the medium. I agree they should have given Matt some kind of credit. I'm just trying to point out that the concept of ownership on the internet is a huge gray area.

 

Matt, another method would be for you to register your work with the U.S. Copyright Office before posting it. You can do it all online here: http://www.copyright.gov/ Then, if this were to happen again, you would have clear legal action you could take.

 

I totally agree with what you suggest about the way people are using the internet although I think it actually would tend to be more movies and tv shows getting copied on the internet than youtube videos. Usually youtube videos just get linked to/embeded. Copying and reposting of youtube videos does happen but is less common because there is usually no need.

 

...and of course in the case of the law there is no grey area although the issue is strictly one of rights and NOT ownership, just as it is with television.

 

Actually it might still be worth registering with the U.S. copyright office, as you can do so for up to a month after first publication.

However I would point out that these days the USA is subject to the berne convention so you have copyright automatically and do not have to register for this to be the case. Registering with the copyright office might make your case stronger tho.

 

Freya

[Freya Black]

As far as fair use goes, it doesn't matter if the footage is posted publically. One can claim fair use on material from a DVD just as much as one can claim fair use on material from a pulic YouTube video. Fair use is determined upon both the intention (criticism, review, news, etc...) as well as the length of the clip in relation to both the original work as well as the work using the clip. There could be an argument made that the use of my footage is fair use, although I don't really feel that this was the case.

 

I also think still photographers get a better deal when it comes to the laws. A photo is often considered a complete work, whereas a shot in a film isn't. If they used my still photos instead of video, I might have a stronger case, since I cold say that they infringed on an entire photo, 100% of my work, compared to 10 seconds of an 8 minute video, 2% of my work.

 

In relation to fair use, it's obviously a difficult matter as CNN is a news channel, so they may have a stronger case than if it were say a documentary. Fair use has rarely been upheld in court tho to the best of my knowledge. Traditionally it's very difficult to claim fair use when you are running a commercial service.

 

I would just ignore the whole issue of fair use for now and not get into it with CNN unless they bring it up, because it's messy.

The easiest thing might be to invoice CNN for the amount you feel is appropriate and they may well just pay it as they are a big organisation (Time Warner!!!) and probably can't be bothered getting into a thing with you. Also they probably broke their own guidelines by not contacting you first, so they may see it as something that went wrong and be keen to fix it.

 

Let us know how you get on! :)

 

Freya

[Freya Black]

 

Freya,

 

Normally I would agree but you are talking about a completely different medium. Television content has been strictly regulated for decades and the need to obtain licensing for any clips has always been clear. There is no question as to who owns what. The problem lies with the fact that the internet is still the mostly widely used & unregulated medium out there. When people are sharing and posting things that are not their own all day & everday, with no reprecussions, why should a television network face any?

 

I should also point out that you kind of answered your own question about why a "TV network should face any?" when you suggested that in television "the need to obtain licensing for any clips has always been clear", and this is an instance of broadcasting on television and not copying and reposting of the clip on the internet (although that would still be a breach of copyright in the eyes of the law)

 

It should also be noted that huge companies like Viacom and TimeWarner frequently issue takedown notices on youtube and cause a lot of issues for ordinary people trying to use youtube. It's not unknown for people to get automatic takedowns issued on their own content and have to fight to get it reinstated against a huge company that isn't too interested.

 

I don't think these companies should be allowed to have it both ways whenever it suits them, although this is definitely what they are pushing for.

 

Freya

[Mark Dunn]

With the exception of the password protected videos, YouTube is a public, searchable site much like Facebook. I see still-frames from there on the news everyday. If a video or image is accessible through a search on the internet, isn't it fair game for use? Consider the fact that you do not even need an account to search through videos. I agree the news network should have at least thrown "YouTube" over the video, but the fact that you chose to share it on the internet - which amounts to a global audience - I think you might have a hard time saying you didn't give them permission. Technically, you were the first person to broadcast it.

 

 

Absolutely not. Publication is not permission. No signatory to the Berne Convention could allow that.

Anyway as I said the issue of infringement is separate from the liability to pay for a licence to transmit the material. Infringement is a matter for lawyers and could be an amount in the millions. The latter is a fait accompli- CNN is bound to pay- and that is an amount presumably in the thousands.

[Perry Paolantonio]

Bill: That's a good idea about putting copyright text on my videos. I would hate doing this, as it's really annoying to viewers, but it may be what I have to do.

 

My understanding is that you don't need to do this (unless you want to "spoil" the video). The fact that you chose the Standard YouTube License means you're not making it freely available for anyone to use.

 

I have a friend who shot a 1 minute iPhone video last summer of a praying mantis. It went (mildly) viral. Other YouTube accounts ripped it and re-posted it as their own, and it showed up on television (Inside Edition played it, apparently). My friend contracted with a UK company to go after the people who used it and get some compensation. Apparently this company went after broadcasters on my friend's behalf as well as web sites that had reposted the video as if it was their own (making money off their own advertisements at my friend's expense). Six months later they got a check for $1500. It's not much, but more than they ever expected to make off of it, which was zero.

 

In any case, you should definitely speak with a lawyer and demand compensation. Too many TV stations treat YouTube as a free video stock footage warehouse.

[Matt Sezer]

I talked to the legal council from CNN, who said the following: "Like many of the clips used in this program, and as is common in these types of news and documentary programs, we used these clips pursuant to the fair use doctrine rather than pursuant to a license."

I contacted several people, including a producer and an attorney, who basically told me that it was kind of a gray area, but they did have a legitimate argument for fair use. They also told me that I had a legitimate argument that it wasn't fair use, but there was no way it would be worth taking the time and effort of going against a major company with virtually limitless legal resources.

It's a bit ironic because fair use was advocated by many as a way to protect independent filmmakers from being bullied by large media companies into getting clearences for everything. In this case, a large media company is using it to avoid getting clearances from a independent filmmaker.

Anyway, I was able to get them to give me credit on future episodes of the show. At the very least, they acknowledged they used my footage, which apparently doesn't always happen in cases like this.

Perry: The reason why I would put the text in the corner of the video would be so that if somebody used my footage, I would get credit at the very least. The issue was never that my footage wasn't copyrighted, CNN never disputed this. The issue is if their use of my copyrighted content was fair use, which if the roles were reversed, probably wouldn't work out, but things are the way they are.

[Perry Paolantonio]

I realize you may not have the resources to fight this, but I have to be honest - they're screwing you because they're in the position of power here and they know it.

 

If you took 10 seconds of CNN footage, tweaked the color and used it in your documentary, you can bet they'd be all over you. The fact that they've given you credit is nice, but it's not really enough.

 

While it may not seem like it, not fighting this just creates a precedent that tells CNN that it's ok to steal other people's content. If they went to a stock footage house, they'd have paid $600+ for that footage - your work is worth something to them and you should be compensated for it with more than just a credit.

 

If you're still a student, I'd see if the school where you study offers free legal services. Many schools do - often in cooperation with either their own or other local college's law schools. It's worth it even if you don't pursue this, just to find out the best way to cover yourself in the future. It may be too late to do something about this situation, especially if you already agreed to anything, but remember - the lawyer for CNN has nothing to lose here, so they can say whatever they want to make it sound like you don't stand a chance at winning. You're not a lawyer (presumably), so the approach they're likely taking is one of intimidation, even if it comes with a friendly smile and a token gesture like giving you credit.

 

Sorry - this kind of thing really makes me mad. Your work is valuable and you should be compensated for it. Not demanding that just reinforces the status quo.

[Bill DiPietra]

 

I should also point out that you kind of answered your own question about why a "TV network should face any?" when you suggested that in television "the need to obtain licensing for any clips has always been clear", and this is an instance of broadcasting on television and not copying and reposting of the clip on the internet (although that would still be a breach of copyright in the eyes of the law)

 

Not really. My point was that the internet is not nearly as regulated as the medium of television, which is where the problem lies. Anyone planning to use a clip from televison would be nuts not to get clearances before using it because they know they would get sued. That's not the case with internet material. The thinking out there due to the fact that billions of things are shared and posted everyday is one of "What's the big deal? It's the internet." Especially when dealing with a media giant that can afford a legal indiscretion such as that. I gurantee CNN would have gotten clearances had they taken the clip from another network.

 

You are absolutely correct when you say that once you complete you a work, you hold the copyright (whether or not it's registered.) I'm not disputing that or any other part of the law. However, reality very often does not conform to legality, which is why I anticipated the outcome that Matt wound up with.

[Bill DiPietra]

 

I talked to the legal council from CNN, who said the following: "Like many of the clips used in this program, and as is common in these types of news and documentary programs, we used these clips pursuant to the fair use doctrine rather than pursuant to a license."

I contacted several people, including a producer and an attorney, who basically told me that it was kind of a gray area, but they did have a legitimate argument for fair use. They also told me that I had a legitimate argument that it wasn't fair use, but there was no way it would be worth taking the time and effort of going against a major company with virtually limitless legal resources.

It's a bit ironic because fair use was advocated by many as a way to protect independent filmmakers from being bullied by large media companies into getting clearences for everything. In this case, a large media company is using it to avoid getting clearances from a independent filmmaker.

Anyway, I was able to get them to give me credit on future episodes of the show. At the very least, they acknowledged they used my footage, which apparently doesn't always happen in cases like this.

Perry: The reason why I would put the text in the corner of the video would be so that if somebody used my footage, I would get credit at the very least. The issue was never that my footage wasn't copyrighted, CNN never disputed this. The issue is if their use of my copyrighted content was fair use, which if the roles were reversed, probably wouldn't work out, but things are the way they are.

 

 

Sorry it wound up like that, Matt, but I can't say I'm surprised. The unfortunate reality is that they are CNN and you aren't. But you obviously got their attention since they agreed to give you credit. If anything, it's a good experience for the future.

[Freya Black]

 

Not really. My point was that the internet is not nearly as regulated as the medium of television, which is where the problem lies. Anyone planning to use a clip from televison would be nuts not to get clearances before using it because they know they would get sued. That's not the case with internet material. The thinking out there due to the fact that billions of things are shared and posted everyday is one of "What's the big deal? It's the internet." Especially when dealing with a media giant that can afford a legal indiscretion such as that. I gurantee CNN would have gotten clearances had they taken the clip from another network.

 

You are absolutely correct when you say that once you complete you a work, you hold the copyright (whether or not it's registered.) I'm not disputing that or any other part of the law. However, reality very often does not conform to legality, which is why I anticipated the outcome that Matt wound up with.

 

Totally agree with you! Only I don't think that's really about the internet as such, just that CNN are huge and if it's just a tiny individual they feel they can just take stuff, on the basis of "Whatya gonna do about it then?". If it was another networks footage, even on YouTube(!!), they would have paid up as you suggest I'm sure. Of course if you use any of time warners stuff on the basis of "Fair Use" then you will get a takedown very quickly and will probably have your account banned from YouTube etc etc.

 

Obviously the internet is the enabling technology that allows them to take from small individuals tho, so yeah I can see where you are coming from!

 

Freya

Edited March 14, 2014 by Freya Black

[Matt Sezer]

Just to be clear, the fact that my footage was on YouTube had nothing to do with them having the right to use it, other than the fact that they found it on YouTube. The fact that I'm not a big production company with legal resources most likely contributed to them using it under fair use.

As it was explained to me, fair use depends on the context of the footage in both works. They used around 10 seconds of my footage to provide non-vital background info on a supplementary character in a 6 episode series. The footage was taken from a 9 minute YouTube video. Had the footage been a more prominent part of either the show or my video, it wouldn't be fair use.

If I had used 10 seconds of CNN's footage in the same sort of context in one of my documentaries, I doubt that CNN would go after me. However, I also doubt that anybody would issue me E&O insurance, which I'd need to broadcast the film, because of the high level of risk. CNN using my footage doesn't have the same level of risk, and thus they were issued E&O insurance on the basis of fair use, something that wouldn't work for me.

Also, if anybody's interested, my footage is the footage of the NATO protest between 15:54-16:03:
http://www.cnn.com/video/data/2.0/video/bestoftv/2014/03/07/full-episode-chicagoland-season-1-episode-1.cnn.html

[Freya Black]

Wow! They used it in a documentary series! That's extreme.

 

Actually I'm sure if you used their footage on youtube and they caught wind of it they would be down on you like a ton of bricks.

 

If you use their footage in a documentary they never see then no they won't go after you because they won't know about it.

 

Freya

Edited March 14, 2014 by Freya Black

[Bill DiPietra]

And Robert Redford - the advocate of independent filmmakers - is the EP. That's priceless.

[Robert Houllahan]

I hate to do it but after a recent similar situation I guess you have to watermark the footage you put out on the internet, sucks for presentation but if some crappy network is going to steal it it might as well go with a built in credit.