Fallout from a prank associated with the tragic Asiana airlines crash is teaching a valuable lesson about copyright law and the fair use defense.
When a transpacific flight crash-landed at San Francisco International Airport earlier this month, preliminary media reports focused on the key questions, “Is everyone okay?” and “What went wrong?”
But even before authorities could clear the wreckage of Asian Airlines Flight 214, whose crash claimed the lives of three and left more than 180 injured, the story had taken a different turn.
Duped by an intern intent on playing a tasteless prank, KTVU in Oakland, California aired a list of names purported to be those of the pilots of ill-fated flight. It quickly became clear that the list was nothing more than a racist joke.
Hundreds of YouTube videos of KTVU’s snafu sprang up in the hours following the incident. Obviously not anxious to see its gaffe immortalized, and concerned about the insensitive nature of the prank, KTVU filed “takedown notices” under the Digital Millennium Copyright Act in an attempt to suppress the content.
A DMCA takedown notice is a tool that allows the owners of digital content to request that a website operator or internet service provider take down media displayed without the owner’s permission. If a website operator complies with a take down request, they are immunized from any legal action arising from the material in question. This provides a substantial incentive for websites to defer to takedown notices.
The DMCA takedown notice is a remarkably effective tool for any creator of content to protect their work-product. Its prolific use is evidence. Google reports receiving more than 14 million DMCA copyright removal requests in the past month alone.
So why does a YouTube search of KTVU still yield dozens of clips of the Asiana Airlines debacle, many of those clips with millions of views?
It has to do with the way those clips are being used. Copyright law allows the free use of a protected work for criticism, comment, news reporting, teaching, scholarship, or research. So while the KTVU news clip is copyrighted content, those who want to voice an opinion on the situation by posting it to their YouTube account are entitled to do so. The idea is to balance the author’s right to compensation for their work against the public interest in the spread of ideas and information. In this case, people were clearly more interested in poking fun or expressing anger at KTVU than in profiting from the stations’ copyrighted content.
Given the digital photograph’s vulnerability to online misappropriation, professional photographers should be particularly aware of the fair use defense. More often than not it will be the foundation of any defense to DMCA takedown notice, and in the case of legitimate fair uses, it will overcome the photographers claim of copyright infringement.
Whether a use qualifies for the fair use defense is determined on a case-by-case basis. A court will consider four factors in making its determination:
1) the purpose and character of the contested use
2) the nature of the copyrighted work
3) the amount and substantiality of the portion taken, and
4) the effect of the use upon the potential market.
If you believe your work-product has been illegally used online and want to file a takedown notice, this quick guide explains the basic steps to putting together a claim.
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