Is a viral video subject to intellectual property law?

By Stephanie Reid

The concept of “viral” videos is relatively new as compared with intellectual property rights, which have been around for decades. When a video starts receiving exponential attention on social media, the application of traditional intellectual property laws can be as unclear as the grainy, homemade footage itself.

Classification of viral videos

Viral videos are often an enigma when it comes to intellectual property, as they are often shot accidentally or without any creative intent. As opposed to a novel, sculpture, or software code, viral videos also tend to implicate other people or the property of others, or are shot without the subjects’ awareness or knowledge. Hence, the first foundational question to ask when discussing viral video property rights is: “Who actually owns the video?”

When a person simply shoots a video and saves it to their device, they continue to retain complete ownership of that video—much like a photographer shooting a scene and saving it in his camera for later. The confusion sets in, however, when the video’s owner opts to upload the content to a service like YouTube, Vimeo, or similar video-sharing site—as this decision tends to invoke the (possibly) unknowing consent to complex licensing agreements. More often than not, these licensing agreements are rife with legalese and user-unfriendly language, perhaps drafted to dissuade video owners from initiating any kind of copyright or infringement lawsuit against the site or its affiliates.

Licensing agreements

In all likelihood a viral video owner does not relinquish ownership rights by uploading their content to YouTube, Facebook, or any other social media or file-sharing platform. By contrast, the user probably—unwittingly—agrees to a complex licensing agreement granting the site most (if not all) of the following rights:

• Full licensing rights to the content for a perpetual amount of time;
• The right to sub-license and/or share the content with other websites;
• The right to re-distribute the content;
• The right to profit from viewership of the video.

Presumably—unless the user agreement states otherwise—the licensing rights described above terminate upon the user/owner’s decision to remove the content from the site.

Protecting your video

As a digital video grows more popular, it may be time to consider copyrighting the material to protect against unlawful duplication. Generally, copyright laws apply to any “original works of authorship” as defined in the Copyright Act of 1976. There are a broad array of genres that fall within the spectrum of the Copyright Act, including video creations—even if unstaged or created accidentally. By securing a copyright on the material, the viral video creator protects their work from someone doing any of the following:

• Reproducing the content
• Preparing derivative works
• Performing or displaying the works publicly
• Re-posting the content without proper attribution to the creator

A digital video creator’s copyrights are technically vested the moment the video comes into being. In other words, US copyright laws will protect a creator from unlawful infringement even if no “official” steps are taken to protect the work. However, without much more to go on, it is often the creator’s word versus that of the alleged infringer, creating a difficult scenario for the court to unravel.

Consequently, it is generally considered good practice to place a notice of copyright somewhere on the video to alert others that the content is the original work of the creator, which will help place the presumption of copyright on the creator. The infringer must then overcome this burden by showing facts to the contrary (for example, that he or she actually created the material first).

An interesting case

The courts have yet to catch up to the legal issues that can spawn from a viral video intellectual property issue. However, one recent case sheds some light on how the courts might react in a legal challenge—particularly given the oft-invoked “fair use” exception to traditional and modern copyright laws.

In November 2014, YouTube content creator Ray William Johnson of “Equals Three Studios” initiated a lawsuit against the viral video company Jukin Media. Johnson initiated the lawsuit after Jukin launched several “takedown notices” against Johnson—primarily due to Jukin’s assertions that Johnson had stolen its material for use in an aggregate viral video comedy series, which actually satirized some of Jukin’s material. In the lawsuit, Johnson asserted that he could use the videos under the “fair use” doctrine, which is a copyright exception that allows duplication under certain limited circumstances (including for commentary or transformative purposes). By contrast, Jukin asserted that Johnson was profiting from the posts and was in clear violation of copyright laws.

In the end, the court found that 18 of the 19 videos in question were “admittedly commercial,” but also a clear parody (in other words, commentary) of the original work— and therefore covered under the fair use doctrine. In sum, the court’s holding carved a potentially generous loophole within the viral video context, allowing others to “comment on” or parody an original piece—for profit—without worry of violating the original creator’s copyrights. While this holding is limited within a California district court, content creators nationwide are assuredly hoping this standard does not go “viral” itself.

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