Why using the Democratic Party’s FlipperTV video is a very bad idea.
The Democratic National Committee recently launched FlipperTV, a website that hosts pretty much every video of every Republican candidate that their operative create on the 2008 campaign trail. It would be fine if that were all it was, but it goes a step further. The site says:
With FlipperTV, Americans can now watch and download this video, and use the footage as they wish, putting raw material into the hands of the American people to hold these candidates accountable for their comments and actions.
This video is released to the public domain. You may download and use the video as you wish, with no restrictions.
This is where things get really weird, at least from a rights perspective.
For starters, the courts have long held that people have a right for their likenesses not to be used commercially without their consent. This is why non-journalist photographers and videographers carry waivers for their subjects to sign, and it’s also part of why motion picture companies hire “extras” to appear as extra bodies on-screen. it’s also the reason a lot of reality TV programs have a budget for obscuring the faces of people for whom no waivers are on file. If they were to slip-up and include a person who had not waived their rights, they could find themselves the targets of a lawsuit.
These videos released by the DNC easily contain the images of thousands of people. These people have the same rights as anyone else concerning the use of their likenesses, regardless of whether the work that contains their likeness was released by its creator into the public domain.
(I wonder what would happen if hundreds of the non-candidates in the videos complained to the DNC about the use of their likenesses for political purposes without their consent; perhaps something like that could kill the site even in its infancy…)
Other issues that beg questioning by anyone wanting to create a derivative work of video released by the DNC into the public domain:
1. Copyright provenance. The DNC says it is releasing the video into the public domain, but a central question is whether the DNC held the copyright to the videos (and, by extension, the right to release the videos into the public domain) in the first place. Under current copyright law, works created in the U.S. are automatically protected by Copyright at the time of creation. Which means that the work actually belongs to the operative that created the video, unless the operative somehow transferred the copyright to the DNC by contract. It’s possible that the work might be considered “work for hire”, and thus it would already belong to the DNC (just as my own images from work don’t really belong to me), but the DNC doesn’t say anything to assure us of this. It says “staffers” took the videos, but if they are volunteer staffers, it’s not clear that the work is considered work made for hire without an agreement.
Suppose for a second that the copyright somehow didn’t get transferred to the DNC: all it would take is one RNC infiltrator to give them a video, then sue for infringement when the DNC posts it, and everyone would have egg on their faces.
2. Do they know what they’re doing? It’s not clear to me that the DNC fully understands what it is doing with this site. On the front page, they release the video into the public domain, but on the bottom of every page, including the pages that include the video, they assert copyright, without an exception for the video they released into the public domain. (OK, maybe this makes sense because the site might be a derivative work that includes material in the public domain, which can be protected by copyright… But why leave it up to the imagination?) This makes me wonder whether they really thought to give all of their staffers work-for-hire agreements, since the whole venture is new for any U.S. political party.
Or, maybe they really know what they are doing. By encouraging others to use the video “with no restrictions”, they probably have already calculated that they can’t be held liable for misuse of the videos. But they don’t warrant that they will assist you when you get sued by someone who claims that their rights to privacy or publicity were violated. Video editors beware.
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