Look up in the sky! It’s a bird; it’s a plane; it’s Superhost!
Starting in 1969 and continuing for 20 years, WUAB Channel 43’s newsman Marty Sullivan transformed into Superhost on Saturday afternoons. “Supe” would mix in humor and skits (“Fat Whitman” and “The Moronic Woman” are classics) with the airing of horror movies and “The Three Stooges.”
Though Superhost has been off the air for many years, he is still fondly remembered by fans. My sister, Debbie, tracked Marty down in Oregon to get his story for a “Where are they Now?” profile on ClevelandSeniors.com
Marty is doing well in his Oregon home and says, “I loved Cleveland. I can’t say one bad thing about it. The people were wonderful.” He put together some classic clips from the show on a DVD called “Supe Bits.”
About a week after getting a letter and DVD, we found that some of the copyrighted clips were on video-sharing Web site YouTube.com. Marty is the nicest guy in the world and did not want to do anything detrimental to his fans. He could have pursued the issue, and was willing to help if we chose that route. Though we didn’t, it made me wonder about the legalities.
Video can be a powerful tool for your business. Inexpensive and easy-to-use software, hardware and tools make video production possible for the masses. Companies can use videos for in-house and external training, communications and, of course, branding and marketing. And free hosting and distribution from sites like YouTube make video a cost-effective way to reach millions of people.
But can you just upload any video you shoot or come across to YouTube? With the exponential growth of the video-sharing site (more than 100 million videos viewed and 65 million videos posted daily) you might be tempted. For example, I shot a video of baseball great Bob Feller cutting the ribbon to open the new Heritage Park at Jacobs Field. I posted it on YouTube. Could Bob Feller, another nice guy, sue me?
And what if you own the rights to something and someone else posts it? What can you do? The “Supe Bits” case isn’t life or death, but reading about the $1 billion copyright suit that Viacom filed against Google, parent of YouTube, raised more questions.
YouTube visitors are a young demographic and many of Viacom’s holdings such as ComedyCentral and MTV are geared toward that audience. Viacom was not thrilled that the content they owned and profited from was being consumed for free on YouTube. Viacom demanded that more than 150,000 clips of its content be removed from the site. Google says it is in compliance with the 1998 Digital Millennium Copyright Act (DMCA) since it complies with requests to remove unauthorized material.
In its Frequently Asked Questions section, YouTube states, “We don’t control the content on our site. Our users post the content on YouTube — including videos, comments and ratings. Our community guidelines and messaging on the site make it clear that users must own or have permission from copyright holders to post any videos. We take copyright issues very seriously. We prohibit users from uploading infringing material and we cooperate with copyright holders to identify and promptly remove infringing content.”
If those two behemoths each make a convincing case, what can a small business do?
We consulted an expert. John Cunniff is an attorney with law firm Hahn, Loeser & Parks LLP and focuses his practice in intellectual property and technology, including patent, trademark and copyright law. (Note: Some of the legal details are beyond the scope of this article so check with Cunniff or your own expert for more information.)
Cunniff says: “The ultimate outcome of the Viacom suit against YouTube/Google is difficult to predict. The DMCA provides ISPs (Internet Service Provider) with a ‘safe harbor’ against claims if their activities fall into one of four categories. … These can be thought of as either automated activities, like routing or caching of data, or non-automated activities like posting and linking. The automated activities are ones where the ISP has no real opportunity to know what is being transmitted and those involving some human intervention and control.”
As in much of law, it’s not all black and white. So this case is being carefully watched. “The Viacom v. YouTube case may be as illustrative as the Grokster case, which went to the Supreme Court in 2005,” Cunniff says. “In that case, the Supreme Court held that liability for copyright infringement will be incurred where one distributes a device (in that case, a program) with the object of promoting copyright infringement.”
There are two perspectives for businesses: as copyright holder and as (unwitting) infringer. This month, we’ll cover the copyright holder case.
Cunniff advises, “First, any business owner must understand what copyright protects — ‘original works of authorship fixed in a tangible medium.’”
This list includes “literary works, musical works including accompanying works, dramatic works, including accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings and architectural works.” Phew!
Cunniff clarifies that “it does not extend to general ideas, only the particular expression of those ideas. Copyright provides the author with the right to exclude others from reproducing, adapting, distributing, performing in public or displaying in public, his or her work.”
But this is the Internet age, the era of MP3s and easily copied content. Doesn’t that change things?
Nope. “Copyright protection extends to the Internet,” Cunniff says. “Music, pictures, software, etc., are not necessarily in the public domain just because they are on the Internet.” Like the Superhost bits.
So should a copyright holder have to monitor every Web site to find misuse of its property?
“As shown by the Viacom lawsuit against YouTube, it may be impossible to find all possible instances of copyright infringement,” Cunniff says. “However, copyright protection is not self-executing. A copyright owner must assert his or her rights. It may require a cost/benefit analysis to determine when a search for infringement is or is not economically worthwhile, but periodic searching may be necessary to protect more valuable rights.” The benefit was not worth possible bad feelings from fans in the Superhost case.
Legitimate sites should take some initiative to protect copyright. Cunniff agrees. “Host sites should not ‘wink’ at infringement occurring on its site, particularly if it can be shown that they knew of or should have known of it and had reason to ignore copyright violations,” he says.
But you should be proactive. Cunniff advises “copyright owners who do not police infringements will soon see the value of their work dramatically reduced, maybe to zero. Some infringement may truly occur without the knowledge of responsible ISPs and can be eliminated with a moderate amount of searching.”
Next month we will look at the other perspective and answer questions such as: Can I post a video with background music from a CD I bought?; Can I use a phrase like “Where’s the beef?”; Can I include images of celebrities?
Now, as Supe would say, “Back to the flick,” er, magazine.
Entreprenerd Dan Hanson’s favorite Superhost movie was “Abbott and Costello Meet Frankenstein.” E-mail
hanson@inside-business.com for more on “Supe Bits.”