As startups have started to license viral videos such as police and civilian violence, unanswered questions over fair use have arisen as flashpoints.
Fenwick’s copyright litigation co-chair Laurence Pulgram spoke with the ALM and Inside Counsel about this growing trend of viral video monetization, and the difference between an entertaining cat video and a history-changing tragedy, both in terms of monetization, and whether the fair use defense should apply.
"Fair use is certainly a topic that attorneys are always scratching their heads over," Pulgram told the ALM. "When a client comes to you and asks 'Is this OK?' the challenge is to run through cases that are most similar to your client's in order to make a gut check on whether or not something qualifies as fair use."
However, there are few cases dealing with after the fact monetization of these types of once spontaneous, now historic, videos, according to Pulgram. Pulgram said organizations have a better chance of arguing that their use is not infringing when it happens at or close to the time of the event. “What we haven't seen is a lot of news entities backing down, at least during the news cycle, or being sued for use [of the videos] during the news cycle."
Pulgram pointed out that when a use is being made that is commercial, or that will substitute for what is usually licensed, copyright protection is strongest. Hence, later archiving of videos that are being licensed after the news cycle has less likelihood of being deemed fair use.
Inside Counsel reported that companies are using a bootstrap approach – buying copyrights that were otherwise not being used commercially, and then complaining that existing displays by others are not fair use because they hurt the new commercial endeavor.
“I don’t think that courts are going to be exceptionally receptive to this approach, but where a company builds an archive of useful clips, future uses of those clips will need to be licensed,” Pulgram said.