PR Pile Up

From the “making a bad situation worse” department came this item earlier this week. In the wake of the horrific crash at the Daytona raceway last Saturday, NASCAR demanded that YouTube take down video of the incident filmed by a spectator. YouTube did so, indicating on its site that the video was blocked on copyright grounds. NASCAR quickly issued a statement saying it did not demand the take down on copyright issue, but rather out of respect for the injured fans. Not too long after that, YouTube put the video back up, and it issued this statement: Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos. But this all begs the question, was there or was there not a copyright issue here? The answer is yes, there was a copyright in the video, but it may not have belonged to NASCAR. NASCAR has language on the back of all of its tickets wherein it purports to own the rights to all “images, sounds and data” from the event. The same language is on the back of tickets for most professional sporting events. And it’s an open question whether that gives NASCAR the copyright in photos and video shot by fans. Typically, the copyright belongs to the person who created the content, and the boilerplate is a little vague to constitute some sort of transfer of that right. NASCAR doesn’t help its case by basically encouraging fans to upload that sort of content (when it doesn’t include any crashes apparently). And given that uncertainty, YouTube decided to reverse its original decision. But let’s not get confused here. YouTube is not saying there is no copyright in the video, it’s just saying that NASCAR doesn’t own it. And if the person who shot the video wanted to enforce the copyright, that would have been a different story. It’s worth noting, the person who creates the content owns the copyright, and doesn’t give it away by uploading it. YouTube gets a license in the uploaded content (pursuant to its own boilerplate language in its terms of service) but the rest of the world does not. So if you want to take that content and paste it on your own site, or TV station, or wherever, that’s a potential infringement. Consider that last sentence a metaphorical caution flag.