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A case for fair use.

By Jeff John Roberts
July 18, 2016

When a maniac rained bullets on Dallas policemen this month, one man caught in the chaos started streaming the scene to Facebook from his phone. The video shows the man, Michael Bautista, gasping in fear as he records police officers attempting to return fire as they huddle over a fallen comrade.

The clip immediately went viral with millions of views on Facebook and YouTube. Soon, however, copies of Bautista’s video began to disappear as a company called ViralHog used copyright claims to knock them off the Internet.

The dispute over the video comes at a time when first-person footage is coming to define major news events, and raises the question of who should control and profit from such clips.

Cash for Tragedy

ViralHog is among a handful of startups that pay people for videos that could attract buzz. Most of the clips are typical Internet fare—goofy animals, sports mishaps and so on—but also include news events like natural disasters.

In the case of the Dallas video, it took less than 24 hours for Bautista’s clip to reappear on YouTube with a licensing proposition:

In response, some YouTube users posted complaints about ViralHog, saying the company had taken down copies of the Bautista video they had previously posted online.

According to Ryan Bartholomew, one of the founders of ViralHog, the site makes money by collecting license fees on behalf of those who are typically, in his words, “in the right place at the right time.” Payouts vary but the company typically gives a 60% cut to those who supply the videos.

ViralHog does not, added Bartholomew, take an ethical stance on what type of videos it will license.

“Whether a video is of a funny cat or a tragic event, the videographer owns their work and is entitled to control it,” he said by email. “A viral video will always be monetized by someone, and representation can ensure a video’s owner reaps the benefits rather than those who steal it.”

Fortune was unsuccessful in attempting to reach Bautista for comment about the Dallas video.

This is hardly the first time, of course, that someone has sought to make money from footage obtained from a tragic news event. In another racially charged episode from 1992, a helicopter crew who filmed the beating of a white truck driver in Los Angeles successfully sued a TV station for playing the clip without permission.

More recently, a bystander filmed a policeman murder an unarmed man, Walter Scott, in South Carolina. The footage went viral on social media and, one week later, led the bystander to claim news outlets had to pay him $10,000 if they wanted to run it. The claim, and the manner it was reported, attracted considerable criticism from some in the media.

The decorum of seeking profit from footage of a tragedy may be a question for ethicists. But from a legal standpoint, the issue raises hard questions about how copyright law should apply in events that become part of public memory.

Fair Use and Viral News

The idea of fair use means that, in some cases, it’s OK for reporters, artists, and others to use a work without the permission of the copyright owner. Sometime the fair use is clear-cut—such as when paragraphs from a novel appear in a book review. Other times it’s not.

According to professor Pamela Samuelson, an authority on fair use at Berkeley, the law has long been ambiguous when it comes to breaking news and significant events. In the 1992 case of the beaten truck driver, fair use did not apply but, in a 1967 dispute over footage of the Kennedy assassination, a court sided with a book publisher who used still photos of the event without permission from the owner, Time Inc.

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In the case of viral videos like the Dallas shooting or the police killing of Philando Castile (the Minnesota motorist whose girlfriend recorded and narrated his death on Facebook Live), Samuelson says there is a fair use argument in favor of using these videos.

One reason is that, unlike the film of the Los Angeles beating, the videos in Dallas and Minnesota were not shot as part of a commercial venture. But there is also something more at stake.

“It seems to be that for these breaking news videos, we’re not watching for the entertainment value or beautiful aesthetics. It’s about the importance of documentation,” said Samuelson.

Such documentation ensures the video incidents become part of the national memory. For this reason, fair use may provide a way to ensure they do not become invisible as a result of copyright claims.

But, for practical purposes, there is still the question of who should get paid and when. In the case of Bautista’s Dallas video, the clip is still there for anyone to see on YouTube and the only ones who will have to pay appear to be news agencies that want to use it on their own sites.

According to Bartholomew of ViralHog, the company’s enforcement practices only extend to takedowns. ViralHog does not send settlement letters demanding payment to avoid a lawsuit (a controversial practice known as “copyright trolling.”)

As for the fair use question, so far no court appears to have ruled on how it should apply to viral videos situations like Dallas and Minnesota. It’s an open question whether it’s enough for the video makers to be recognized for sharing their testimony, or if they should be able to collect money as well.

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