Fair use of my copyrighted work???

[Paul Tauger]

Originally Posted by Jerry Wiese

I am an event videographer who specializes in dance performances. I recently discovered excerpts of several of my copyrighted videos on YouTube, obviously posted without my permission, and with no credit given to me. I used the process YouTube provides to have them removed as a violation of my copyright. It worked.

Then I contacted the owner of the dance school from which all of the incidents occured, and informed her that this was not OK and she needed to tell her students not to do that. The school itself had used some of my video, ill informed and ill advised. I told the owner that I would be happy to produce clips for her at no charge to promote her school (a not-for-profit) and they would be up to my standards, with my full permission.

I also informed the parents at the school that I would be happy to produce audition videos for their kids for a fee. I do this as a service, and my work is very high quality. I provide a dozen copies of a 10 minute audition video for $250, which includes one on-site visit at their studio to do some custom shooting. I will also compile segments of my raw performance video to highlight their dancer for audition purposes-- as long as the dance school/company/choreographer give their permission to use it, and this isn't typically a problem.

I think most of you would agree that $250 is CHEAP for what they're getting, and might even criticize me for giving away the store. But I think it is a reasonable fee, and it is a valuable service for those who would rather send audition videos all over the country than travel there in person for an audition.

SO.... Here's my issue. A parent asked me to post a clip of her daughter on YouTube. I said I would be happy to for a fee. Later she came back and told me her husband is a copyright lawyer, and he said they should be allowed to use a clip from my DVD that I copyrighted and sold to the general public under the Fair Use exception of the copyright law.

I have already checked out this link to the Fair Use section of US Copyright Code-- very helpful by the way: U.S. Copyright Office - Fair Use

SO HERE IS MY QUESTION: Is it fair use for someone who acquired one of my copyrighted performance DVDs to extract and use a portion of that performance to post on YouTube or produce their own audition DVD without my permission?

I think YouTube's service agreement protects me, and it's easy for me to police and remove. I am more concerned about the DVDs.

I'm a copyright lawyer. However, you're not my client and I can't give you legal advice.

As a general proposition, posting protected expression on YouTube without permission is not Fair Use. Without seeing the clip in question, as well as the DVD from which it is extracted, I couldn't give an opinion.

Incidentally, are you obtaining rights to the music used to accompany the dancers?

[Paul Tauger]

Originally Posted by Chris Barcellos

In the law, its called the clean hands doctrine. If your hands are dirty, why would the court slap someone elses.

It's actually, "unclean hands" doctrine and applies to equitable relief, only, not damages at law.

I am wondering if it would be possible for Mr. copyright lawyer to sue you for using his childs image or performance in a DVD you sold, without his permission.

It depends on the jurisdiction but, generally, you can use someone's image if it was obtained under circumstances in which the individual had no expectation of privacy.

[Paul Tauger]

Originally Posted by Dave Blackhurst

Two is he's an attorney, and that means he can pretty much do whatever he can argue in Court (trust me on this nightmare, attorneys are damn close to above the law, as are politicians who also are mostly attorneys... go figure). Remember the Bozo with the million dollar pants suit against a dry cleaner... put them out of business even though they won.

The Bozo in question was a judge who lost his position on the bench as a result. Attorneys do not bring lawsuits on whim. Fed. R. Civ. P. 11 (all copyright is litigated in federal court) assigns personal responsibility to an attorney who makes a frivolous filing, which includes a frivolous defense. Judges can and do impose sanction on the attorney for doing so.

[Paul Tauger]

Originally Posted by Richard Alvarez

"Public Domain Music" - in what sense are you using that phrase? Did they dance to a recording of a piece of classical music? Then you have to have the rights to use that recording, from the publisher.

Correct.

Did they dance to a piece of classical music performed by the local school band? Do you have the rights to the performance of those musicians?

You don't need rights -- there is no copyright interest in a live performance on the part of the performers. You will need rights from the arranger of the classical music.

I think you've figured out that the copyright attorney, is willing to go toe to toe with you on this.

I wouldn't be so sure. This is a variation on, "my friend is a lawyer and he says . . ." I've recently had to deal with someone infringing my employer's website. He is a lawyer (though not an IP lawyer) and, when I spoke with him, he said, "I've talked to an IP lawyer and he said I wasn't infringing." My answer: "Whoever you talked to is wrong. Regardless, I'm really not concerned with what other lawyers think. I think you're infringing, I've so advised my employer, and we'll do what is necessary to protect our intellectual property rights." He said, "Okay. I'll make the changes."

He might be right, he might be calling your bluff. Frankly no one here is going to give you legal advice, including the copyright/IP attorney who regularly visits the forum.

I won't give legal advice to non-clients but, due to changes in circumstances regarding my employment, I'm prepared to go a lot further than previously, so feel free to ask.

[Paul Tauger]

Originally Posted by Steve House

Unless others chime in to correct me (and IANAL) IMHO I don't see how "Fair Use" would apply to allow a client to post your copyrighted work on YouTube or elsewhere IF in fact you actually have a valid copyright.

As soon as expressive content is fixed in a tangible medium, you have a valid copyright. Registration of the copyright is a prerequisite to a lawsuit, not to copyright ownership or protection.

That use of your materials doesn't come under the umbrella of academic research, criticism and commentary, use as classroom teaching materials in an accredited school or university, or news gathering and it's my understanding that fair use is pretty much limited to copies made expressly for those purposes only and not much else.

Not exactly. The four factors in the statute are a guideline, only, and not meant to be dispositive. Unfortunately, I'm very busy today, so I don't have time to write about the underlying rationale for the Fair Use doctrine, but it is more extensive than just this list.

I'm just guessing, but I think where Richard is going with his questions is that if you didn't have the necessary permissions to use the music to begin with, you're not coming to the party with "clean hands" and any claims you might make regarding owning the copyright on the video would be rendered invalid.

Any law suit that requests equitable relief, e.g. an injunction, is subject to the defense of "unclean hands." Damages at law are still available.

[Chris Barcellos]

Originally Posted by Paul Tauger

It's actually, "unclean hands" doctrine and applies to equitable relief, only, not damages at law.

Originally Posted by Chris Barcellos

I am wondering if it would be possible for Mr. copyright lawyer to sue you for using his childs image or performance in a DVD you sold, without his permission?

Originally Posted by Paul Tauger

It depends on the jurisdiction but, generally, you can use someone's image if it was obtained under circumstances in which the individual had no expectation of privacy.

Paul:

The issues I was raising, rather inartfully, was about rights to sell video of the performances and the actual filming of the children without parental consent. While I haven't researched the law, if Videographer Al talks to Dance school owner Betty, and gets permission to film a dance recital and produce a Disk for sale to her customers, does he need to assure he has right to video tape those performances and profit from them, with respect to the individual performers? This is an issue always in the back of the mind of event videographers, especially at school events.

[Dave Blackhurst]

Originally Posted by Paul Tauger

The Bozo in question was a judge who lost his position on the bench as a result. Attorneys do not bring lawsuits on whim. Fed. R. Civ. P. 11 (all copyright is litigated in federal court) assigns personal responsibility to an attorney who makes a frivolous filing, which includes a frivolous defense. Judges can and do impose sanction on the attorney for doing so.

Paul, my point was that SOME unethical attorneys DO file frivolous suits (am currently a victim of one of those, so I know whereof I speak), and it does enormous finanacial damage to the victim, who is pretty much without sufficient recourse, even if the Bozo does lose the suit, his bench, right to practice law, his reputation. Frankly in the County in which I'm dealing, the attorney in question "owns" the judges, and is about to become one. He pretty much told me he could get away with anything he wanted to... I'll leave it at that, but PM if you want details... it's a sordid tale of what I beleive is gross misconduct by people who should know better, and a system that winks and nods on cue.

I agree that most atorneys don't abuse the system, but others make a career of it (to put it bluntly the law and "privilege" grants them far more leeway than anyone should have), and for Jerry's sake, thought it important to point out. No one needs legal hassles, and an attorney who will wave his status in your face and threaten you with it is a red flag - don't do business or be prepared to defend yourself. Just a word to the wise.

FWIW, I've got lots of attorneys I consider to be friends, and who I know to be ethical... so don't take it personally <wink>!

[Richard Alvarez]

Paul,

Thanks for weighing in, you're thoughts are always valued and appreciated.

[Paul Tauger]

Originally Posted by Dave Blackhurst

Paul, my point was that SOME unethical attorneys DO file frivolous suits (am currently a victim of one of those, so I know whereof I speak), and it does enormous finanacial damage to the victim, who is pretty much without sufficient recourse, even if the Bozo does lose the suit, his bench, right to practice law, his reputation.

I'm not saying it doesn't happen, but it's very, very rare in IP matters, as well as in Federal Court.

Frankly in the County in which I'm dealing, the attorney in question "owns" the judges, and is about to become one. He pretty much told me he could get away with anything he wanted to... I'll leave it at that, but PM if you want details... it's a sordid tale of what I beleive is gross misconduct by people who should know better, and a system that winks and nods on cue.

That's state court -- a whole different proposition. Are you represented? If not, drop me a PM and maybe I can "kibbutz" a little.

I agree that most atorneys don't abuse the system, but others make a career of it (to put it bluntly the law and "privilege" grants them far more leeway than anyone should have), and for Jerry's sake, thought it important to point out. No one needs legal hassles, and an attorney who will wave his status in your face and threaten you with it is a red flag - don't do business or be prepared to defend yourself. Just a word to the wise.

Understood.

FWIW, I've got lots of attorneys I consider to be friends, and who I know to be ethical... so don't take it personally <wink>!

I never do. ;)

[Brian Boyko]

Is it -her- kid in the video?

Personally, I think you may have legal ground to stand on, but not moral ground. It would be one thing if she put the entire DVD online, but just the parts with -her- daughter in it aren't enough to get snippy about. It would be one thing if she asked for a custom package (a service you provide) and then didn't pay you. This is more like: "My daughter was in a movie! I'm so proud of her!" kind of thing.

You could ask them to take it down, and you might win, but then you're the guy who made a six year old girl cry. It's a bad situation, and one of the reasons I avoid children.

I'd just go ahead and let them have it, just make sure that you're properly credited as the photographer, with a link to where they can buy the full video, and chalk it up to some publicity.

[Jerry Wiese]

Wow. I am officially over it, but I appreciate the enthusiasm with which you have all participated in this discussion! I have come to the conclusion that this was a silly thing for me to get upset about. There are much bigger fish to fry.

For the record, the daughter was mortified at the prospect of being posted on YouTube. She HATED her performance. This was all about the mom. I don't mind the kids. It's the CRAZY MOMS that I want to avoid!