Viacom Still Not Getting It — Files Bogus Takedown And Kills Some Free Transformers Buzz

from the you're doing it wrong dept

Ben Brown and Micki Krimmel stumbled upon the filming of Transformers 3, and from their office window, watched as cars were thrown across the air for one of the scenes. That’s not something you see every day, so they broke out their cameras and filmed what they were watching. Not surprisingly, they posted their videos to YouTube to share what they had seen. Brown’s blog post about witnessing the filming was filled with exuberant excitement, including the YouTube video. Except, now if you click play on that video, you get this:

Yes, it appears Paramount promptly filed a DMCA takedown — which seems like a fantastic way to kill excitement for the movie. According to the takedown, Brown’s video “matched third party content,” which, of course, is impossible since Transformers 3 has yet to be finished (let alone released) and obviously Brown took the video himself. The filming took place in a public alley, so anyone around is totally free to take pictures or video and share them.

Now, not only is it ridiculous to claim that these videos are covered under Paramount’s copyright, it’s hard to fathom why Paramount would want to bother quashing these videos at all. After Brown and Krimmel posted their videos, entertainment blogs picked the story up and started to build buzz about the movie. Isn’t that a good thing? Personally, I really disliked the last Transformers movie, and this latest round of DMCA shenanigans isn’t doing a very good job of convincing me to give the next installment another look.

On top of that, this is Paramount we’re talking about — which is a subsidiary of Viacom. Viacom, of course, is in the middle of a big lawsuit with YouTube, where one of the things Viacom has been claiming is that Google should just know what content is infringing and which is not — and yet, here, again, Viacom is falsely claiming that videos infringe. This was actually a big problem in the lawsuit, where Viacom had to withdraw clips from the lawsuit, after it was determined that Viacom had uploaded them on purpose. Also, after being sued for bogus takedowns earlier, Viacom came to an agreement with the EFF that it would carefully review content before issuing takedowns. So, with all of that combined, you would think that Viacom would be a bit more careful than to take down videos taken by others of something happening in public.

In the meantime, to make things even more confusing, while Paramount issued a takedown on Brown’s video, it apparently left Krimmel’s up… for now, despite being basically the same thing. You can see that one (while it lasts) here:

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Companies: google, paramount, viacom, youtube

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Comments on “Viacom Still Not Getting It — Files Bogus Takedown And Kills Some Free Transformers Buzz”

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The Groove Tigersays:

Re: Re: Re:

“Some things don’t belong to you, and its not in your rights to share them. Some things should be taken down.

This is not one of those cases however.”

And the burden of proof should lie on those that make the claim that “your video should be taken down”, not getting basically a FREE “take it down” pass and then leaving the entire burden of defense to the, in many cases, rightful owner of the video.



Do the people issuing the takedown not have to declare, under penalty of perjury, that they represent the owner of the copyright? If so, as the copyright here belongs to the person who filmed the ‘public’ event not to Paramount, is the person issuing the takedown not committing perjury which is a criminal offence?

DH's Love Childsays:

Re: quid pro quo

“can Krimmel issue a takedown notice if the movie now contains this scene”

I wouldn’t think so. The scene in the movie would have to be using the actual footage that Krimmel shot. Since the studio was filming with their own equipment simultaneous to Krimmel, they would have the copyright on their footage independant of Krimmel’s


Re: Re: quid pro quo

Absolutely, but by Viacom’s rationale, it is perfectly ok for Krimmel to issue a DMCA takedown when he sees the movie uses this footage. The fact that he has no copyright claim is apparently not an issue as long as you are filming the same thing at the same time.

The DMCA should have some sanctions against completely bogus takedowns issued.


Re: Re:

Yes, the person who filmed the event has a copyright in their footage, but the performers also have a right to their performance, and in all likelihood, they have assigned that right to Viacom, which is now exercising their right to issue a takedown notice.

If an author were to write a book that included excerpts from another work, that author would have a copyright interest in his work, but that would not absolve him of infringement if his work includes copyrighted material.


Re: Re: Re:

Yes, the person who filmed the event has a copyright in their footage, but the performers also have a right to their performance, and in all likelihood, they have assigned that right to Viacom, which is now exercising their right to issue a takedown notice.

There were no performers in the video, only an FX crew tossing a small car down an alley.


Re: Re: Re:

Besides there not being any performers in this scene, what right to their performance do they have? Copyright? Copyright covers something put down in tangible form. If I understand right, they could have copyright over a recording of their performance, but not the actual performance. For example, an actor can’t sue another actor for copying his performance.


Re: Actor copyright in performance

In the US, the idea of actor’s copyright in their performance is entirely new and very controversial. It has been found to my knowledge in a single case in the US 9th Circuit Appellate court, and there’s no statutory language directly expressing this copyright.

Also, it’s not the case that a single element of a work being under copyright to another entity means that that entity has total control over the work. It depends very much on how much of the work consists of such elements, to what purpose they appear, the overall nature of the work, how the work is made available (commercially, for free), etc. Taking a video of a public street that just happens to contain a copyrighted element and making it available for free is pretty close to the golden case. Imagine if you couldn’t post a pic of yourself in Times Square because the picture incorporated a copyrighted element from a billboard or sign. That’s the legal theory you are proposing.


Copyrights applicable to film sets?

Don’t film makers have copyrights over the film sets they create?

Otherwise, what would prevent low-budget film crews from following other crews around, in order to use their explosions, scenes etc. for their own purposes?

I was once in a film park that offers create-your-own-film afternoons for birthdays. They wouldn’t let us shoot films on official film sets that were used in films, because these sets were copyrighted. Might have been contractual issues though…

Martin O'Bsays:

Re: Copyrights applicable to film sets?

If the film makers have copyright over their sets, that would only mean that you can’t physically reproduce the set. Filming something happening ON the set (a video audiovisual reproduction of an event) is totally different from making a physical copy of that environment.

Catherine Bsays:

I’m with those who say that it should be explicitly against the law to issue bogus takedown notices, and that there should be stiff penalties for doing so.

@Ralph-J: This was filmed in a public street, not a set built by Paramount. Therefore, they have no copyright over it. If we start practicing the rule you suggest, nobody who lives, walks or drives down a street segment that has been filmed will be allowed to publish film or photos of the filmed area until all those who have exploited it commercially have been dead for at least 70 years.

Mark Lsays:

While the performers [and yes the FX crew do count as performers, as it is their talent that is making things happen] do have copyright over their performance, they can only maintain that control/ownership in a CLOSED/PRIVATE VENUE. This was on a public street, so anything they do is fair game for bystanders to photograph or film.

There is a second part to this, in that you have control over your own personal image, and that no one can use your image for commercial purposes without your permission. So in theory the people in the video could request a take down, if it was being used for commercial purpose. As this video is not being used for commercial purpose, there is no problem

Viacom/Paramount is clearly in the wrong here. The lawyers/executives that file these obviously false claims should be charged with fraud. [as they are misrepresenting ownership of the material in question]


Gets worse.

Not sure about the States but in the UK, we are free (despite recent efforts by UK police to make up new laws as they go along) to film/video or take pictures on the street. For some company to try and claim copyright on video that was shot in a public area and owned by somebody else and, furthermore, get it taken down, is surely despicable.

Why do the "They still don't get it" stories persist?

I don’t think they have any rights under DMCA on this one since they didn’t create the content and it was in a public space.
I have more on this here including a video of me on TV talking about the Viacom/YouTube case and links to the tons of vitriolic comments left by YouTubers furious at Viacom. Warning, lots of profanity.



The DMCA allows them to touch it even if it has nothing to do with anything Viacom has ever done. They could issue a takedown notice of a video of a blank wall with no audio, and if you don’t counter-notice the provider would have to take it down. And if you do counter-notice, maybe it will stay up, but nothing will happen to Viacom.


copyright theft - simples

there was no contractual relationship giving Ben & Micki’s work to Paramount?
The equipment was owned by B & M?
they chose how & when to film something in a public place? there was no reason why paramount would expect it not to be visible by the public?

surely it is simple.

Paramount are trying to steal someone else’s work _ and should be prosecuted with all the enthusiasm aggression and exageration the film industry love…

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