Freebooting: What to do if Someone Steals your Video

You spend many weeks creating a world-class video — writing a script, amassing props, finding a location, enticing and perhaps paying a troupe of actors, arranging lighting, recording sound, directing talent and crew and, of course, editing, editing, editing. Then you upload your finished video to YouTube and it’s a hit. Hundreds or thousands of people see it and appreciate it and some even post laudatory comments about it on the YouTube site.

After all that effort, your work is freebooted. Your video appears on Facebook, uploaded natively, with or without giving you credit for all your hard work, your creativity and your expenses. You are understandably upset and you certainly have a right to be. The proverb, “imitation is the sincerest form of flattery,” became popular in the early 19th Century, but your imitator has clearly crossed the line, violating both ethics and copyright law.

How to Remove the Video from Another’s Website

What do you do? How do you prevent the unauthorized copying of your video?

First, we recommend registering your video, screenplay or sound track with the Copyright Office before you upload your video to YouTube or any other online distribution service. That way, you may be eligible for an award of your attorneys’ fees if your case develops into litigation. You can register your copyright online for $35 via the Copyright Office website: www.copyright.gov.

First, we recommend registering your video, screenplay or sound track with the Copyright Office before you upload your video to YouTube or any other online distribution service.

The next step is to inform the infringer that you are aware he or she has copied your video or portions of it without your permission, which is a violation of Title 17 of the United States Code. You or your lawyer should send a cease and desist letter to the infringer by certified mail, return receipt requested to establish a legal record that your letter was received.

You can remind the infringer that damages for copyright infringement, when a civil court finds the infringer liable, are the sum of your actual damages and profits of the infringer, if any. If you cannot calculate those damages, you can ask for statutory damages, which range from $750 to $30,000 per video, as the court considers just. If the infringement was committed willfully — i.e., after you informed the infringer that he was infringing — the court, again in its discretion, may increase the award of statutory damages up to $150,000.

Before you go down the road of expensive litigation, you can demand that your video be removed from the infringer’s website, or from YouTube or Facebook, for example. Alternatively, you can offer to grant the infringer a license to continue to display your video. You can tell the infringer to pay you a license fee of a certain amount. License fees can range from $1 to any reasonable value you believe displaying your video is worth. We would also make it a condition of the license that the infringer must display your name and contact information with the video.

Copyright Takedown Procedure

Congress enacted the Digital Millennium Copyright Act of 1998 (DMCA), under which online service providers (OSPs) like YouTube and Facebook are exempt from direct and indirect liability for hosting material provided by others. Therefore, YouTube and Facebook are not liable for copyright infringement if another party copies your video. Nevertheless, most online service providers have a procedure for removing material that violates a person’s copyright rights.

YouTube has a simple procedure for removing unlawfully uploaded videos. You can learn details of the takedown procedure by searching “YouTube Copyright Takedown Notice” on your browser. YouTube allows you to send a takedown notice by email to copyright@youtube.com. You must identify the infringing material clearly and specifically, provide the title of the infringer’s YouTube video, and state that you have a “good faith belief” that the material actually infringes your copyright.

Alternatively, you can supply the same information in writing to YouTube via postal mail addressed to:
DMCA Complaints
YouTube (Google, Inc.)
901 Cherry Avenue
San Bruno, CA 94066

Similarly, Facebook’s takedown procedure requires you to email the company at ip@fb.com and state:
1. You have a good faith belief that use of the copyrighted content is not authorized by the copyright owner, its agent, or the law;
2. The information in your notice is accurate, and
3. You declare, under penalty of perjury, that you are the owner or authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed.

Alternatively, you can supply the same information in writing to Facebook via postal mail addressed to:
Facebook, Inc.
Attn: Facebook Designated Agent
1601 Willow Road
Menlo Park, CA 94025

Finally, we always advise seeking professional counsel from a lawyer who deals with copyright matters to receive advice tailored to your circumstances.

Mark Levy and Roman Zelichenko
Mark Levy has been contributing articles to Videomaker magazine since 1988. He is past president of the Amateur Movie Makers Association and has won awards internationally for his short films and videos. He practices intellectual property law (patents, trademarks, and copyrights) in Evergreen, Colorado.Roman Zelichenko is Founder & CEO @ LaborLess. Entrepreneur. Lawyer. Writer. Improviser. Climber. Snowboarder. Eater. Traveler.

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