Fair use of my copyrighted work??? at DVinfo.net

Jerry Wiese · January 7th, 2009, 05:13 PM

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.

Richard Alvarez · January 7th, 2009, 05:24 PM

Here's a question that might bear on the answer.

Who owns the copyright to the music in the performance?

Jerry Wiese · January 7th, 2009, 05:33 PM

I knew that would come up. Well aware of all the music related copyright issues. What does that have to do with Fair Use?

Richard Alvarez · January 7th, 2009, 05:49 PM

So you HAVE the right to reproduce and sell performances of copywritten music?

Steve House · January 7th, 2009, 06:01 PM

Quote:

Originally Posted by Jerry Wiese

I knew that would come up. Well aware of all the music related copyright issues. What does that have to do with Fair Use?

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. 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. 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.

Chris Barcellos · January 7th, 2009, 06:05 PM

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

If you want to be technical about it, I guess the real issue is this, do you have rights to the music, and did you secure rights from each peformer and secure those rights exclusively. 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. Be careful about the can of worms you may open.

Jerry Wiese · January 7th, 2009, 06:10 PM

I posted before I read the two replies above about the "clean hands" law, and I get it. I do have releases from the dancers, including his daughter. I do own the rights for performances in question, which include public domain music.

Chris Barcellos · January 7th, 2009, 06:23 PM

Quote:

Originally Posted by Jerry Wiese

Can you please answer the question both ways-- I do own the rights for performances in question, which include public domain music. But let's say I don't own the rights for performances that include recorded popular music. What then?

I would really be interested in both answers... but I can guess where you're going with this. If I didn't own the rights to music in the performances that I shoot and sell, then I can't copyright the DVD, and I am infringing on the music rights. But does that mean the Copyright Lawyer is perfectly within his right to use video of his daughter however he pleases, whether Fair Use or not? Wouldn't he also be infringing on the copyrighted music?

Jerry:

You live in Georgia, and each state may have different laws that can interact and affect federal copyright law. Photographing of children without explicit permission, may raise issues. You have a complicated set of facts here, that requires review by an attorney of any release documents, contracts, local and federal laws. Get advice from a local attorney, if it is a big issue.

But to your question of Copyright attorney himself breaking the law, your standing to protect someone elses copyright rights is the issue. You likely don't have the right to enforce someone elses copyright rights, unless there is statutory provision that provides for it, or you have been assigned the right.

Chris Davis · January 7th, 2009, 06:36 PM

Not the hill I'd be willing to die on.

Maybe it is fair use, maybe it's not. Are you ready to spend thousands of $$ on a lawsuit to find out? It's not like you can call 911 and ask for the copyright police.

I provide good service at reasonable rates. If someone is determined to do an end-run around my policies, I'm not going to lose sleep over it.

Jerry Wiese · January 7th, 2009, 06:42 PM

Excellent advice, Chris and Steve, and you really helped me answer my own question. I have neither the money nor the inclination to take anyone to court over this. But I am inclined to stop doing business with clients who cause me more trouble than they're worth!

Richard Alvarez · January 7th, 2009, 06:59 PM

"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. 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?

A lot of people throw around the word 'public domain' with the same abandon they toss around the phrase 'fair use'. It can be a little more complicated than a lot of websites would like you to believe.

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

Shaun Roemich · January 7th, 2009, 07:23 PM

Quote:

Originally Posted by Jerry Wiese

But I am inclined to stop doing business with clients who cause me more trouble than they're worth!

In all seriousness: good luck with that. I've resolved this MANY times and every time I think I've got ever angle covered, someone comes up with something new...

John DeLuca · January 7th, 2009, 07:28 PM

***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?***

They will copy it and you can’t really stop them. I talked to an old broadcaster about this and the only tried and proven method is to take pre orders only (tell the parents it is ONLY available to buy before the event). If the number of pre orders is to low then don’t waste your time.

Jerry Wiese · January 7th, 2009, 08:19 PM

Quote:

Originally Posted by John DeLuca

They will copy it and you can’t really stop them. I talked to an old broadcaster about this and the only tried and proven method is to take pre orders only.

Everything I do is pre-order. I figured that out early!

Dave Blackhurst · January 8th, 2009, 01:04 AM

Jerry,
Two observations, one is that what the guy is doing is wrong... but is it really going to impact/damage your business?

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.

Probably just better to refuse service in the future, and realize some people are just not terribly ethical, which is different from ignorant. Ignorance may be no excuse, but complete lack of ethics... that takes a special license in the good ol' USA.

January 7th, 2009, 05:13 PM	#1
Jerry Wiese Regular Crew Join Date: Apr 2007 Location: Johns Creek, GA Posts: 42	Fair use of my copyrighted work??? 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. Last edited by Jerry Wiese; January 7th, 2009 at 05:16 PM. Reason: I am a terrible speller with fat fingers

January 7th, 2009, 06:05 PM	#6
Chris Barcellos Inner Circle Join Date: Nov 2005 Location: Elk Grove CA Posts: 6,838	In the law, its called the clean hands doctrine. If your hands are dirty, why would the court slap someone elses. If you want to be technical about it, I guess the real issue is this, do you have rights to the music, and did you secure rights from each peformer and secure those rights exclusively. 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. Be careful about the can of worms you may open. __________________ Chris J. Barcellos

January 7th, 2009, 06:10 PM	#7
Jerry Wiese Regular Crew Join Date: Apr 2007 Location: Johns Creek, GA Posts: 42	I posted before I read the two replies above about the "clean hands" law, and I get it. I do have releases from the dancers, including his daughter. I do own the rights for performances in question, which include public domain music. Last edited by Jerry Wiese; January 7th, 2009 at 06:18 PM. Reason: updated based on replies posted before this one

January 7th, 2009, 05:24 PM	#2
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	Here's a question that might bear on the answer. Who owns the copyright to the music in the performance?

January 7th, 2009, 05:33 PM	#3
Jerry Wiese Regular Crew Join Date: Apr 2007 Location: Johns Creek, GA Posts: 42	I knew that would come up. Well aware of all the music related copyright issues. What does that have to do with Fair Use?

January 7th, 2009, 05:49 PM	#4
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	So you HAVE the right to reproduce and sell performances of copywritten music?

January 7th, 2009, 06:36 PM	#9
Chris Davis Trustee Join Date: Jul 2005 Location: Willmar, MN Posts: 1,400	Not the hill I'd be willing to die on. Maybe it is fair use, maybe it's not. Are you ready to spend thousands of $$ on a lawsuit to find out? It's not like you can call 911 and ask for the copyright police. I provide good service at reasonable rates. If someone is determined to do an end-run around my policies, I'm not going to lose sleep over it.

January 7th, 2009, 06:42 PM	#10
Jerry Wiese Regular Crew Join Date: Apr 2007 Location: Johns Creek, GA Posts: 42	Excellent advice, Chris and Steve, and you really helped me answer my own question. I have neither the money nor the inclination to take anyone to court over this. But I am inclined to stop doing business with clients who cause me more trouble than they're worth!

January 7th, 2009, 06:59 PM	#11
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	"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. 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? A lot of people throw around the word 'public domain' with the same abandon they toss around the phrase 'fair use'. It can be a little more complicated than a lot of websites would like you to believe. I think you've figured out that the copyright attorney, is willing to go toe to toe with you on this. 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.

January 7th, 2009, 07:28 PM	#13
John DeLuca Major Player Join Date: May 2003 Location: Akron, Ohio Posts: 496	*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?* They will copy it and you can’t really stop them. I talked to an old broadcaster about this and the only tried and proven method is to take pre orders only (tell the parents it is ONLY available to buy before the event). If the number of pre orders is to low then don’t waste your time.

January 8th, 2009, 01:04 AM	#15
Dave Blackhurst Inner Circle Join Date: Feb 2007 Location: Apple Valley CA Posts: 4,874	Jerry, Two observations, one is that what the guy is doing is wrong... but is it really going to impact/damage your business? 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. Probably just better to refuse service in the future, and realize some people are just not terribly ethical, which is different from ignorant. Ignorance may be no excuse, but complete lack of ethics... that takes a special license in the good ol' USA.