Audacity: Viacom copies YouTuber’s video w/o permission, then accuses YouTuber of infringement

September 1, 2007

News: Independent film maker Christopher Knight made the commercial below to campaign for a local school board (he lost).

Afterwards, VH1 (owned by Viacom) saw Knight’s funny video, copied parts of it, and showed it on the VH1 show “Web Junk 2.o.” Viacom did so without asking for copyright permission from Knight. You can see the VH1 clip here. Knight heard about being featured on the VH1 show from friends, so he copied the segment about his video and posted it on YouTube.

So what happened next? Viacom sent a DMCA notice to YouTube demanding the removal of Knight’s video of the VH1 clip that features Knight’s video. YouTube complied and removed the video. Now, Knight is incensed. Here’s what he writes on his blog:

“That’s chutzpah. So is this: multimedia giant Viacom is claiming that I have violated their copyright by posting on YouTube a segment from it’s VH1 show Web Junk 2.0… which VH1 produced – without permission – from a video that I had originally created. Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright!”

Analysis: The DMCA has a provision to stop this kind of nonsense. Under 17 U.S.C. 512(f), a person who materially misrepresents that a work is infringing in a DMCA notice can be civilly liable for damages.  So if a case is successfully brought against Viacom, it could be held liable (although damages might be somewhat difficult to prove).  It’s also worth noting that, under copyright law, a defendant who infringes a third party’s copyright by using the third party’s copyrighted material to make a derivative work loses any right to claim copyright in the derivative work.  Anderson v. Stallone, 1989 WL 206431, *9-10 (C.D.Cal. Apr 25, 1989).

We’ll see what happens. Knight says he doesn’t have the resources to fight a legal case. This is really bad PR for Viacom, so I expect it will do something to make the brouhaha go away. Maybe EFF will get involved?