Hi all,
I've been shooting stills and publishing for more years than I care to think about and still am. Video however is new to me and something that I've just been having fun doing as well. I was using YouTube to load some of them up to and then embedding them on my personal page. I think that probably isn't a good idea and here's why...

I received an email from someone who has purchased images for creating iphone apps. He told me he is now also linking videos I have uploaded to Youtube in his apps that he tells me he believes to be legal. Seems interesting that he has no problem paying for still images and yet at the same time believes that using the videos without compensation via embedded links is not a problem. He may very well be right and shame on my for not being more diligent in finding out details of Youtube videos. I had always figured that the videos I shoot would never be real money makers etc but that might make a few bucks in applications like apps etc!! Go figure.

To be fair, he has also told me that if I had a problem with this, he would not use them. Anyone else have any experience with an issue like this with videos?

Thanks in advance. Jim

Jim,

Reproducing, displaying, distributing, or creating derivative works of your videos is a copyright violation just as it is of your stills! The only possible defense is a fair use. But using your videos for apps likely would not be considered a fair use.

Register your videos with the Copyright Office, too!

Best,
Carolyn

Hey Jim, good topic as many people consider getting into video and posting it online through various video sharing services like YouTube, Vimeo and others. I haven't posted any videos yet, but did post an animated slide show awhile back through my WordPress blog's video option, and noted that it was being embedded in one or two places.

It's great of your past customer to contact you this way and let you know what he's doing, and offer not to use your material if you're not okay with it. If only more people were thoughtful like this we'd have a lot easier time maintaining the understanding of the value of quality imagery and content.

Here's my take. First, obviously basic web links are legal. That's the nature of the web -- people post things on sites, and other people post links to those things in other places. In the olden days of the Internet and the web, content was consumed by users by running web browsers on computers and clicking links to things. But now with 3G / 4G smartphones, WiFi tablets, networked apps, Internet-enabled televisions & home appliances and lord knows what else, the concept of a customer consuming net-hosted content has gotten very broad. Still, this doesn't change the underlying mechanism -- web links -- or the legality of it. If you post content on the internet, people can link to it. That's the bottom line, and normally that's what we want.

The situation of videos hosted on a video sharing service goes further. That's because other people can not only link to a video, they can embed it, and this is what you're talking about with the iPhone app. With an embedded video, the viewer doesn't have to click like with a normal link -- the video would show up on the other site (or in this case iPhone app) that hosts the embed link. The video playback is still done via the YouTube video player, and the video content is still served up by the YouTube servers, but otherwise it appears to the viewer as if the video is hosted on some other site (or app). You're doing this yourself to put your videos on your own personal site.

At first glance it may seem like this could be a copyright infringement, but it isn't necessarily. It's another form of link, one in which the content appears not within the context of the site originally hosting the content, but within the context of the site hosting the link to the content. (An analogy that got lots of people hot a few years back was the hotlinking of static images within other web sites -- making your own site's gallery postings for example appear on other sites as if they were directly hosted there, but with the bandwidth to serve the images [and any potential associated bandwidth charges] coming from your own site.) Hotlinking static images isn't illegal, as I read the accounts of various legal cases; likewise I don't believe embedding videos would be illegal, for similar reasons. But that's my reading, Carolyn would have a more accurate interpretation of some of the results of court decisions.

But despite the general situation, embedding videos on YouTube actually may be explicitly legal! That's because of the YouTube terms of service that you agreed to when you set up your YouTube account and started posting content there. Here's a link to the TOS:
http://www.youtube.com/t/terms

Consider the following sections (emphasis mine):

Now, YouTube does give you the ability to turn off the downloading & embedding options, which effectively prevents anyone else from obtaining videos except by going to the YouTube site and playing them there. (Though of course this doesn't prevent people from linking to the content on the YouTube site in the normal way.) Here's how to turn off embedding, for example:
http://www.google.com/support/youtube/bin/answer.py?answer=74648

Anyone trying to crack the YouTube mechanisms to get access to content that you're trying to disallow through access settings would be violating the YouTube TOS. Such use of the content would not be permitted by the TOS, and therefore definitely would be illegal and an infringement of copyright.

So to sum up:

• Posting videos to YouTube explicitly licenses YouTube and YouTube users to do certain things with your content, subject to access permission you set, the YouTube TOS, and YouTube's inherent functionality like the embeddable video player.
• Part of the TOS explicitly supports the ability of YouTube users to embed your video elsewhere, if you haven't disabled embedding. Embedding control appears to be a global setting, however, so if you disable it then you yourself can't embed your videos on your own blog or elsewhere.
• Even if they can't embed your video, YouTube users can still link to your content, as they can anything else on the web.
• YouTube does prohibit some commercial uses of content, but embedding videos on commercial sites (or apps?) is not necessarily prohibited.

However, as we know from the example of hotlinking static images, what is legal and what is good manners are sometimes different things. Especially in the case of a commercial app linking to or embedding your content to support its own purposes rather than yours. My personal practice would be always to obtain permission from the creator if I was hotlinking static images or embedding videos, for example in my blog or if I was to do an app like this. If they said no thanks, then I wouldn't do it. Many responsible bloggers follow the same model, because they recognize the value of good content, and that the importance of protecting intellectual property rights can mean more than just following the technical letter of the law. As, apparently, your customer in this case also understands, which is great.

But not everyone is conscientious; many aren't necessarily bad, but just ignorant about the implications of using content that isn't their own. The situation of unexpected or unwanted video embedding in other sites or apps is another new mechanism that we need to watch out for as we try to get our work out there while also reasonably protecting our interests in that work...

Thank you very much Carolyn and Royce for the quick and informative info. I'll have to do a lot of thinking and investigating to figure my best options here. It seems that while they possibly can link to the videos I would still in the end to be able to at delete the videos from Youtube at any point and they would not be able to use them in their app at least in theory..... assuming it was a reputable producer anyway?

While I sure wouldn't want to go back, it sure used to be a lot easier when we shot only slides!

Once you delete a posted video from YouTube, then indeed nobody would be able to link to or embed that video any more "within a commercially reasonable time" as stated in the TOS section 6.C. While YouTube itself "may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted", no 3rd party would be able to get at them through YouTube any more unless they had taken an actual copy of the video file. It's not easy to do this if you disable downloading in the YouTube settings; if somebody somehow managed to do it it's a clear violation of the YouTube TOS, and you have a clear case of copyright infringement and can go after whoever took & distributed the copy. (You'd be unlikely to be able to go after YouTube.)

This is a good situation to be aware of, but it's not one that I'd be personally alarmed about. If I was posting videos I'd definitely take steps to disable downloads; I might also disable embeds, though I'm not yet sure I'd go that far. It's really the same deal as we encounter all the time on the Internet. First, big sharing sites that we post content into let us do this for free (or for very little money) because they want to leverage our content to build their business. They all have a TOS writeup stating all the rights & licenses we're granting to them by uploading the content. It's basically TANSTAAFL -- no free lunch. YouTube's TOS is pretty good in my opinion, compared to other examples we've seen & discussed recently.

Second, anything we post anywhere on the web in any kind of accessible fashion is potentially going to be obtainable and usable by other people in ways that we don't want. Whether this is legal or not, ethical or not, we all need to be aware of the facts and then make our choice of balancing publicity vs. protection of IP rights.

To the extent each of us cares about this, we should do as Carolyn always says -- know our rights, read the fine print of services we use, watermark our images / videos, post our copyright notices, register with the Copyright Office, track accesses / uses of our content, etc.