EEVblog Electronics Community Forum
General => General Technical Chat => Topic started by: EEVblog on July 13, 2019, 03:22:54 pm
-
:wtf:
This is insane.
A private media company has right of refusal for bloggers like Fran to shoot stuff in the Smithsonian or Air and Space museum etc.
A deal was inked 14 years ago and it's still in effect it seems:
https://www.nytimes.com/2006/03/31/washington/smithsonianshowtime-tv-deal-raises-concerns.html (https://www.nytimes.com/2006/03/31/washington/smithsonianshowtime-tv-deal-raises-concerns.html)
https://www.youtube.com/watch?v=QUQLjVXofrg (https://www.youtube.com/watch?v=QUQLjVXofrg)
-
Whats wrong with that ? Its a true pure form of capitalism, in the country based and believes on capitalism.
-
It's still a public institution AFAIK. Capitalism or not, anything public should grant access to any citizen without restriction (unless of course this is for national security reasons, which it's clearly not here). Otherwise, don't call it public anymore, and don't put a dime of people's tax money in it...
Of course, one of the problems leading to this kind of situations is the financing of those public institutions. I'm pretty sure the Smithsonian Institution got money out of the deal with Showtime. Money that maybe they could not do without. Many public institutions are running into the same problem these days, and not just in the USA, forcing them to accept private money more and more. Obviously with something in return... Would citizens be ready to pay more taxes so it doesn't happen? I'm not so sure. But it would be at least fair to clearly ask them instead of doing this kinda progressively and largely behind their backs.
-
It's still a public institution AFAIK. Capitalism or not, anything public should grant access to any citizen without restriction (unless of course this is for national security reasons, which it's clearly not here). Otherwise, don't call it public anymore, and don't put a dime of people's tax money in it...
Of course, one of the problems leading to this kind of situations is the financing of those public institutions. I'm pretty sure the Smithsonian Institution got money out of the deal with Showtime. Money that maybe they could not do without. Many public institutions are running into the same problem these days, and not just in the USA, forcing them to accept private money more and more. Obviously with something in return... Would citizens be ready to pay more taxes so it doesn't happen? I'm not so sure. But it would be at least fair to clearly ask them instead of doing this kinda progressively and largely behind their backs.
Part of the problem may be that Fran isn't a citizen filming, but a commercial entity.
-
I have no specific opinion about this specific case but I will note several things:
The US Government has copyright policies which are more open than anything else I have seen in other governments. Pretty much all Government work is put in the public domain whereas in the UK, for instance, everything is copyrighted by HM.
The Smithsonian, although it is administered by the Government, is not part of the Government. I realize this is splitting hairs and sort of debatable. This is the kind of issue that makes lawyers rich. The Smithsonian can be simultaneously part of the Government and not part of the Government depending on how you want to look at it. Like the Post Office. Sort of like Guantánamo can be simultaneously subject and not subject to American jurisdiction. Like asking if a car's turn signal is working when it is blinking off or only when it is blinking on.
These "quasi-governmental" institutions serve specific purposes and are allowed to seek financing from their activities. I suppose the US Government figures every dollar the Smithsonian collects is a dollar the Government saves.
European governments have much more restrictive copyright policies. Famously the image of the Eiffel tower is copyrighted in France and cannot be used commercially without permission.
As I say, no opinion on this case. I will save my outrage for the clearly abusive "fees" governments charge. Just seeing how much governments charge foreigners for a visa to visit their country makes my blood boil. That is daylight robbery perpetrated on victims who are not in a position to do anything about it.
-
The Smithsonian, although it is administered by the Government, is not part of the Government. I realize this is splitting hairs and sort of debatable. This is the kind of issue that makes lawyers rich. The Smithsonian can be simultaneously part of the Government and not part of the Government depending on how you want to look at it. Like the Post Office. Sort of like Guantánamo can be simultaneously subject and not subject to American jurisdiction. Like asking if a car's turn signal is working when it is blinking off or only when it is blinking on.
These "quasi-governmental" institutions serve specific purposes and are allowed to seek financing from their activities. I suppose the US Government figures every dollar the Smithsonian collects is a dollar the Government saves.
Our federal and state governments also do this to deliberately prevent public access which would otherwise be required. Corporations sometimes do the same thing with licensing agreements so they can say they had no choice and our government does this also to prevent court and defendant access to exculpatory evidence. The current kerfuffle with copyrighting statutory law is another example:
https://www.techdirt.com/articles/20181019/12232640876/appeals-court-says-course-georgias-laws-including-annotations-are-not-protected-copyright-free-to-share.shtml (https://www.techdirt.com/articles/20181019/12232640876/appeals-court-says-course-georgias-laws-including-annotations-are-not-protected-copyright-free-to-share.shtml)
Also, good for Fran for blatantly reporting on this issue.
-
It's still a public institution AFAIK. Capitalism or not, anything public should grant access to any citizen without restriction (unless of course this is for national security reasons, which it's clearly not here). Otherwise, don't call it public anymore, and don't put a dime of people's tax money in it...
Of course, one of the problems leading to this kind of situations is the financing of those public institutions. I'm pretty sure the Smithsonian Institution got money out of the deal with Showtime. Money that maybe they could not do without. Many public institutions are running into the same problem these days, and not just in the USA, forcing them to accept private money more and more. Obviously with something in return... Would citizens be ready to pay more taxes so it doesn't happen? I'm not so sure. But it would be at least fair to clearly ask them instead of doing this kinda progressively and largely behind their backs.
Part of the problem may be that Fran isn't a citizen filming, but a commercial entity.
So? From the deal point of view, yes, since it's an exclusive commercial access so to speak. But that's not the point. The point is allowing such deals to be made to begin with.
If some public institution prevents ANY commercial entity to film, that could be debatable if that doesn't cause any potential harm, but that would be fair to all.
Allowing just ONE commercial entity to do so with an exclusive deal is NOT fair. So the problem here is not that Fran is filming as a commercial entity, the problem is that she's doing so not being Showtime. Kind of a big difference here.
-
In Australia, regulation 12.38 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) says that a person must not use a captured image of a Commonwealth reserve, which includes iconic areas, such as Uluru, to derive commercial gain.
-
Part of the problem may be that Fran isn't a citizen filming, but a commercial entity.
No, she's still a private citizen regardless.
Do you have to enter into a contract when entering the Smithsonian assigning all property rights of your recordings to them and getting a limited use license for them? If the recordings are your property I don't see how they can limit what you can do with them, commercial or otherwise. I very much doubt the LEM as such is a copyrightable artistic expression (and even if it was I doubt they ever explicitly bought the actual copyright moreso) so copyright law would be of no use to them.
-
Tom Hayden, general manager of Smithsonian Networks, said the partners did not intend the relationship to be exclusionary; rather, he said, they are trying to provide filmmakers with an attractive platform on which to display their work.
In other words, they always intended the relationship to be exclusionary.
Showtime and the Smithsonian can bite me. Fuck them both.
-
No, she's still a private citizen regardless.
Do you have to enter into a contract when entering the Smithsonian assigning all property rights of your recordings to them and getting a limited use license for them? If the recordings are your property I don't see how they can limit what you can do with them, commercial or otherwise. I very much doubt the LEM as such is a copyrightable artistic expression (and even if it was I doubt they ever explicitly bought the actual copyright moreso) so copyright law would be of no use to them.
Here she isn't a private citizen. She's filming for her Youtube channel which is a commercial enterprise. You can't pretend to be a private person and then exploit the images commercially, just like you generally can't buy a ticket to a stadium or concert and exploit the footage commercially. You'll need press accreditation for that. However, it's that attitude that unfortunately leads to quite a few places forbidding photography to begin with. The LEM is obviously subject to copyright but that's not the angle they're playing here.
-
Tom Hayden, general manager of Smithsonian Networks, said the partners did not intend the relationship to be exclusionary; rather, he said, they are trying to provide filmmakers with an attractive platform on which to display their work.
In other words, they always intended the relationship to be exclusionary.
Showtime and the Smithsonian can bite me. Fuck them both.
Your conclusion seems to be the polar opposite of what's stated?
-
Here she isn't a private citizen.
Yes, she is ... she doesn't hold any government office, so she's a private citizen. Doing business can not take that away from you.
She's filming for her Youtube channel which is a commercial enterprise.
Which is only relevant when a contract or law makes it relevant. A law like the one Circlotron posted ... a very un-American type of law.
You can't pretend to be a private person and then exploit the images commercially
There's no pretence involved, you're always still a private person ... your kneejerk distinction between private and commercial generally doesn't make much sense because when you get right down to it every action has commercial impact even when not done for profit motive.
just like you generally can't buy a ticket to a stadium or concert and exploit the footage commercially.
Because of a shrink wrap contract entered into during the ticket purchase ... not because of any law forbidding it.
Which brings me to my original question, does the Smithsonian have such a contract during ticket purchasing?
-
Yes, she is ... she doesn't hold any government office, so she's a private citizen. Doing business can not take that away from you.
Which is only relevant when a contract or law makes it relevant. A law like the one Circlotron posted ... a very un-American type of law.
There's no pretence involved, you're always still a private person ... your kneejerk distinction between private and commercial generally doesn't make much sense because when you get right down to it every action has commercial impact even when not done for profit motive.
Because of a shrink wrap contract entered into during the ticket purchase ... not because of any law forbidding it.
Nobody's taking being a citizen away from her. They're simply refusing the rights to film when she's not filming it as a private citizen but a commercial party instead. It's not some kind of vague indirect profit, but she's making a clip for her channel which is her source of income. She even acknowledges this in her video. While there's no direct law prohibiting photography, your permission to be on the property will depend on you adhering to the rules stipulated.
-
From https://www.si.edu/visit/security (https://www.si.edu/visit/security) :
“The Smithsonian permits still and video photography for noncommercial use only in its museums and exhibitions, unless otherwise posted.”
Clearly, stills and video are not permitted for commercial use without permission. There also appear to be request forms online for commercial photography at the various Smithsonian facilities, so they’ve obviously got the whole usage thing well formalized.
-
Part of the problem may be that Fran isn't a citizen filming, but a commercial entity.
No, she's still a private citizen regardless.
*everyone* is a private citizen, but this probably doesn't apply here. It could be easily argued that she is using the footage for commercial purposes.
-
If the recordings are your property I don't see how they can limit what you can do with them, commercial or otherwise.
That you don't see it doesn't mean the law doesn't see it. That you didn't see the red light doesn't mean the truck who has the green light isn't gonna hit you.
In Paris you are allowed to take photos of the Eiffel tower for your personal use and to show to your relatives but you are not allowed to use them commercially because the Government of France has said (in French I assume) they own the copyright of all images of the Eiffel tower used for commercial purposes. You may like it or not like it, you can understand it or not understand it, you can know it or not know it, but there it is. It is so because the Government said so.
Your "property" is only your property to the extent the government allows it and confirms it. If the government says you cannot use that photo of yours for commercial purposes then you can't. Because the government says so.
-
In Australia, regulation 12.38 of the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) says that a person must not use a captured image of a Commonwealth reserve, which includes iconic areas, such as Uluru, to derive commercial gain.
Yes, but it really is for full-on commercial entities:
Commercial filming means filming done for a specific project or show (for example, by a television station or production company) or filming done for the purpose of selling or hiring material to another party.
Basically it doesn't cover Youtubers or other one-man-band productions, and they do not pursue people. And of course it's not for a non-complete clause. In fact there is a presumption of allowance unless you are doing something big that may impact the place.
Under the FA Act there is a presumption that approval will be granted (other than in unreserved land or wilderness areas) unless filming is specifically prohibited by the park’s plan of management or would have unacceptable impacts that cannot be mitigated through conditions on the approval.
-
*everyone* is a private citizen, but this probably doesn't apply here. It could be easily argued that she is using the footage for commercial purposes.
Not if she demonetises the video. Would be very hard to prove commercial use in that case if it actually came to a court ruling.
-
*everyone* is a private citizen, but this probably doesn't apply here. It could be easily argued that she is using the footage for commercial purposes.
Not if she demonetises the video. Would be very hard to prove commercial use in that case if it actually came to a court ruling.
Whether or not she directly earns money off that video, it could be argued that the "gain" is to promote her channel/business/name etc... My point is "gain" doesn't always have to be directly financial.
-
If the recordings are your property I don't see how they can limit what you can do with them, commercial or otherwise.
In Paris you are allowed to take photos of the Eiffel tower for your personal use and to show to your relatives but you are not allowed to use them commercially because the Government of France has said (in French I assume) they own the copyright of all images of the Eiffel tower used for commercial purposes. You may like it or not like it, you can understand it or not understand it, you can know it or not know it, but there it is. It is so because the Government said so.
Your "property" is only your property to the extent the government allows it and confirms it. If the government says you cannot use that photo of yours for commercial purposes then you can't. Because the government says so.
This is in the US and not France. The only power the Smithsonian has is to not allow her on its property. She owns the copyright on the video she produced of the LEM mock up no matter what agreements Showtime and the Smithsonian have. Trying to enforce an EULA against her would be interesting.
Of course they could copyright strike her on Youtube and get her channel removed because that is how Youtube rolls.
-
She owns the copyright on the video she produced of the LEM mock up no matter what agreements Showtime and the Smithsonian have.
I'm sorry, I didn't know you were a lawyer licensed to practice in DC.
She entered the Smithsonian museums subject to the rules they publish. If she obtained photos or video in contravention to the rules she accepted when she entered the premises I could see how she could be fined and/or lose the rights.
If my neighbor has nudist parties and I ask to be invited and the invite me on condition that I take no pictures of video and notwithstanding I surreptitiously take photos and video I doubt I could say they are mine and I can do whatever I want with them. Because I was allowed on the premises on condition that I do not take photos.
Now, maybe she can sue the Smithsonian claiming the condition is unenforceable for whatever reason but I doubt that would get anywhere. The US Government, as well as state and local governments, contract all the time with private commercial entities, giving them business, rights and money. I doubt the contract with the Smithsonian would be invalidated.
You may not like it and you can write your representative in Congress and tell Mother Superior about it but there is no reason to believe it is not perfectly legal as it is.
You aren't really licensed to practice law in DC are you?
-
She owns the copyright on the video she produced of the LEM mock up no matter what agreements Showtime and the Smithsonian have.
I'm sorry, I didn't know you were a lawyer licensed to practice in DC.
Everybody is a lawyer on the internet.
She entered the Smithsonian museums subject to the rules they publish. If she obtained photos or video in contravention to the rules she accepted when she entered the premises I could see how she could be fined and/or lose the rights.
No, they can prevent her from entering their property or request that she leave. They cannot fine her as that would require a conviction in court. She has no right to be on their property so such a right cannot be removed; it doesn't exist.
If my neighbor has nudist parties and I ask to be invited and the invite me on condition that I take no pictures of video and notwithstanding I surreptitiously take photos and video I doubt I could say they are mine and I can do whatever I want with them. Because I was allowed on the premises on condition that I do not take photos.
There is a big difference between private forms like your neighbor's house which requires an invitation and public accommodations which do not.
Now, maybe she can sue the Smithsonian claiming the condition is unenforceable for whatever reason but I doubt that would get anywhere. The US Government, as well as state and local governments, contract all the time with private commercial entities, giving them business, rights and money. I doubt the contract with the Smithsonian would be invalidated.
Why would she sue the Smithsonian? It would be up to the Smithsonian to sue her.
And what contract would be upheld? She did not agree to any contract. She is not a party to the contract between Showtime and the Smithsonian.
You may not like it and you can write your representative in Congress and tell Mother Superior about it but there is no reason to believe it is not perfectly legal as it is.
It would be a waste of time; nobody in Congress represents me. I have an assigned representative who does not care.
-
Why would she sue the Smithsonian? It would be up to the Smithsonian to sue her.
And what contract would be upheld? She did not agree to any contract. She is not a party to the contract between Showtime and the Smithsonian.
Obviously. If she publishes her recordings and Smithsonian says nothing then there is no problem. Just like if a guy steals my wallet and he's not caught.
When anyone enters a museum, a theater, a concert, a baseball game, or pretty much any public venue they are agreeing and accepting to a number of general rules declared by law and custom and to a number of specific rules set up by the venue and which can be found on the tickets, on the website, on notices on the venue itself, etc. When you go to a concert, a game, a movie, etc. you can be forbidden by the venue from making any photos or recordings. Those are perfectly legal and have been upheld in court.
So, in this case, the only allegation she could make would be that the clause is unenforceable because the Smithsonian is a Government entity. She would have to show what law says the Government cannot do that. I do not believe the law is on her side.
So, we can say we agree or disagree with the way things are but to say something is not legal you have to show why the law says it is not legal.
To prevail in court she would need
- to have the facts on her side
- to have the law on her side
- to have the judge on her side
- to have a ton of money to pay lawyers to fight the Smithsonian (who has even more expensive lawyers).
Somehow I believe none of those are on her side.
It would be a waste of time; nobody in Congress represents me. I have an assigned representative who does not care.
There we agree. They care about the lobbies who pay their campaigns. As the man said "America has the best Congress money can buy."
-
*everyone* is a private citizen, but this probably doesn't apply here. It could be easily argued that she is using the footage for commercial purposes.
Not if she demonetises the video. Would be very hard to prove commercial use in that case if it actually came to a court ruling.
Whether or not she directly earns money off that video, it could be argued that the "gain" is to promote her channel/business/name etc... My point is "gain" doesn't always have to be directly financial.
The lawyers would no doubt rake in their $ $ $ $ $ $ trying to argue that.
In any case she hasn't committed a crime. Worst they can do is escort her off the premises if she comes back.
I'm eagerly awaiting the footage of Fran being dragged kicking and screaming from the Smithsonian yelling "I want access to my Apollo hardware!"
-
This whole thread is fundamentally about intellectual property (IP) rights: the inherent right of an intellectual property owner to control how their property is used, viewed, monetized or otherwise exploited.
Whether it’s private property, the property of the US government or a private foundation funded by the US government makes no difference: an IP owner is entitled to make any rules they like surrounding the use of its IP.
If the usage policies happen to be overly ham-handed because they were made prior to the rise of Youtubers and Vlogs, that’s likely because things move fairly glacially at the institutional level. And given the potential that the use of governmental IP might also be used to convey a certain legitimacy for off-the-wall or outright offensive use, perhaps they feel that there is no screaming rush to redress the semi-pro YouTube usage situation.
If such policies happen to offend those who think that government institutions should not have any such IP rights, or should waive them for whatever reason, then that’s a political issue, and good luck with that: Politicians have bigger fish to fry, and nobody’s chances of getting re-elected will ever be dependent on facilitating the making of entertaining videos for the internet.
Re: enforcement, there’s not even any need to get all lawyered up or debate the “who sues who” thing: if somebody complains and gets some bureaucrat exercised enough to actually do something, a simple takedown notice to YouTube on government letterhead would likely condemn the thing to oblivion for eternity.
As for trying to suppress an IP claim in court, either it’s “public domain” and not protectable as IP, or it’s not, and prior case law for the jurisdiction would prevail. And while I’m not a DC lawyer, I simply can’t believe that there isn’t already plenty of precedents that allow the US government (and the Smithsonian specifically) to claim full rights to their IP as they have done via their commercial usage policies.
My point here is to support the notion of IP rights for all legal entities, something Youtubers should be holding near and dear, and not to necessarily justify the specific IP control policies of the Smithsonian. Again, those are political and administrative in nature, and are made by people ultimately hired by those who are voted in by the electorate. And people always get the government they deserve.
-
Re: enforcement, there’s not even any need to get all lawyered up or debate the “who sues who” thing: if somebody complains and gets some bureaucrat exercised enough to actually do something, a simple takedown notice to YouTube on government letterhead would likely condemn the thing to oblivion for eternity.
I doubt it.
Youtube are just as bureaucratic as the government. They'd have to apply under the same takedown scheme and categories as anyone else. Either copyright, trademark, or privacy infringement using the standard reporting mechanism.
It's Fran's video, so copyright does not apply, and she should win on appeal. In fact they would be committing an offense under the DMCA for filing a false copyright takedown notice.
I don't see any Trademark infringement.
And there is no privacy infringement to an individual.
-
It's been a while since I took a look at any of Fran's videos. She started playing the victim card got some sympathy and now it's about making you tube videos to whine about the days issue. YouTube creators to be successful need to make videos that appeal to a wider audience. It's a difficult business, everyone's playing under the same rules, her channel is niche unfortunately and Google not interested in feeding niche channels..
I understand the Smithsonian has a policy that Fran does not approve of but the problem here is it feels like this is just another 'unfair world' play...
-
I am just going to respond in general.
It has nothing to do with IP rights because there are not any. In the US (and UK), copyright applies to something fixed into a tangible medium. Anything with music is a different matter because of other rights but for instance a sporting event by itself is not copyrightable. There are no copyright, trademark, or other IP rights with the LEM itself or other similar artifacts. A photograph or video of the LEM would almost always be copyrightable by the person who took it.
YouTube would just fold and remove content when asked by the Smithsonian or Showtime. But this has nothing to do with copyright.
The Smithsonian can ask someone to leave under penalty of trespass or prevent access which is what happened here.
In the US, the misappropriate doctrine (https://en.wikipedia.org/wiki/Misappropriation_doctrine) or unfair competition might apply (the UK has equivalents) if the video was used commercially but it is not clear. The court cases I found only covered live streaming. Presumably of course the Smithsonian and Showtime could lawyer someone to death and win even if they would ultimately lose.
Could the Smithsonian enforce what is effectively an EULA against a visitor? I checked and could not find anything so formal from them online but maybe it is part of a ticket or something they give to visitors? Sport concessions have not been very successful with this.
-
I understand the Smithsonian has a policy that Fran does not approve of but the problem here is it feels like this is just another 'unfair world' play...
It's not just a policy, it's a ridiculous agreement with a commercial company that prevents independent creators from creating content on historical artifacts that are supposed to be owned by and funded mostly by that taxpayer. It's a very valid concern that goes way beyond Fran.
-
Could the Smithsonian enforce what is effectively an EULA against a visitor?
They can make any rules they want and have security throw you out for any reason at all. It doesn't mean it's "legal", but it's not "illegal" unless decided by a court of law.
It's not like you can go get a police offer and complain to them to let you have access, they are just going to shurg their shoulders.
Owners of a property have the right to make rules regarding entry to that property, and people have the right to attempt to sue them for access.
-
Could the Smithsonian enforce what is effectively an EULA against a visitor?
They can make any rules they want and have security throw you out for any reason at all. It doesn't mean it's "legal", but it's not "illegal" unless decided by a court of law.
It's not like you can go get a police offer and complain to them to let you have access, they are just going to shurg their shoulders.
Owners of a property have the right to make rules regarding entry to that property, and people have the right to attempt to sue them for access.
They do not need an EULA to order someone to leave.
I mean could they enforce an EULA against someones use in any way of their own video and photographs taken on the Smithsonian's premises? If someone visited as a tourist and took video or photographs which they then later used for commercial purposes, say in a book or video documentary, what could the Smithsonian do?
Sports franchises make all kinds of claims as a condition of admission which cannot be enforced in court but they can always kick you out or prevent admittance.
-
It has nothing to do with IP rights because there are not any. In the US (and UK), copyright applies to something fixed into a tangible medium. Anything with music is a different matter because of other rights but for instance a sporting event by itself is not copyrightable. There are no copyright, trademark, or other IP rights with the LEM itself or other similar artifacts. A photograph or video of the LEM would almost always be copyrightable by the person who took it.
For those interested, a link to "Managing Intellectual Property for Museums" by WIPO, the World Intellectual Property Organization: https://www.wipo.int/edocs/pubdocs/en/copyright/1001/wipo_pub_1001.pdf (https://www.wipo.int/edocs/pubdocs/en/copyright/1001/wipo_pub_1001.pdf)
A thorough and in-depth (I thought) 72 page document to assist museum management and other "cultural heritage communities" manage the issues around IP.
It doesn't appear to speak at the granularity of specific exhibits, but it does inform the thinking around IP within the "cultural heritage" space, which is at the heart of the Smithsonian institutions.
Page 37 even raises the Smithsonian issue that forms the basis of the thread: "The Smithsonian Institution and its for-profit division, Smithsonian Business Ventures, made news because of their deal to distribute the Smithsonian film collection through Showtime, a commercial film distribution company, a subsidiary of the CBS Corporation. Due to the exclusive nature of that deal and the fee based distribution model agreed to by Smithsonian, a public, non-profit museum, the public, politicians, film makers and cultural heritage professionals cried foul." The entry is dated, however, as it suggests the deal was never concluded. What is interesting is that the Smithsonian had to appear before a House Subcommittee to account for the deal, proving that there was political oversight exercised on that particular deal.
-
This whole thread is fundamentally about intellectual property (IP) rights: the inherent right of an intellectual property owner to control how their property is used, viewed, monetized or otherwise exploited.
Whether it’s private property, the property of the US government or a private foundation funded by the US government makes no difference: an IP owner is entitled to make any rules they like surrounding the use of its IP.
If the usage policies happen to be overly ham-handed because they were made prior to the rise of Youtubers and Vlogs, that’s likely because things move fairly glacially at the institutional level. And given the potential that the use of governmental IP might also be used to convey a certain legitimacy for off-the-wall or outright offensive use, perhaps they feel that there is no screaming rush to redress the semi-pro YouTube usage situation.
If such policies happen to offend those who think that government institutions should not have any such IP rights, or should waive them for whatever reason, then that’s a political issue, and good luck with that: Politicians have bigger fish to fry, and nobody’s chances of getting re-elected will ever be dependent on facilitating the making of entertaining videos for the internet.
Re: enforcement, there’s not even any need to get all lawyered up or debate the “who sues who” thing: if somebody complains and gets some bureaucrat exercised enough to actually do something, a simple takedown notice to YouTube on government letterhead would likely condemn the thing to oblivion for eternity.
As for trying to suppress an IP claim in court, either it’s “public domain” and not protectable as IP, or it’s not, and prior case law for the jurisdiction would prevail. And while I’m not a DC lawyer, I simply can’t believe that there isn’t already plenty of precedents that allow the US government (and the Smithsonian specifically) to claim full rights to their IP as they have done via their commercial usage policies.
My point here is to support the notion of IP rights for all legal entities, something Youtubers should be holding near and dear, and not to necessarily justify the specific IP control policies of the Smithsonian. Again, those are political and administrative in nature, and are made by people ultimately hired by those who are voted in by the electorate. And people always get the government they deserve.
It's not just about IP. It's about entering someone's property on the terms and condition set by the property owner.
-
I am just going to respond in general.
It has nothing to do with IP rights because there are not any. In the US (and UK), copyright applies to something fixed into a tangible medium. Anything with music is a different matter because of other rights but for instance a sporting event by itself is not copyrightable. There are no copyright, trademark, or other IP rights with the LEM itself or other similar artifacts. A photograph or video of the LEM would almost always be copyrightable by the person who took it.
YouTube would just fold and remove content when asked by the Smithsonian or Showtime. But this has nothing to do with copyright.
The Smithsonian can ask someone to leave under penalty of trespass or prevent access which is what happened here.
In the US, the misappropriate doctrine (https://en.wikipedia.org/wiki/Misappropriation_doctrine) or unfair competition might apply (the UK has equivalents) if the video was used commercially but it is not clear. The court cases I found only covered live streaming. Presumably of course the Smithsonian and Showtime could lawyer someone to death and win even if they would ultimately lose.
Could the Smithsonian enforce what is effectively an EULA against a visitor? I checked and could not find anything so formal from them online but maybe it is part of a ticket or something they give to visitors? Sport concessions have not been very successful with this.
Releases for property do exist may actually be required.
https://help.author.envato.com/hc/en-us/articles/360000472403-When-Do-I-Need-A-Model-or-Property-Release-
-
I mean could they enforce an EULA against someones use in any way of their own video and photographs taken on the Smithsonian's premises? If someone visited as a tourist and took video or photographs which they then later used for commercial purposes, say in a book or video documentary, what could the Smithsonian do?
Like I said for Youtube video takedowns. They can't claim copyright because the person owns the footage.
They can't claim trademark, as even if they shot the Smithsonian sign/logo it would be covered under Normative Fair Use.
They can't claim privacy unless a staff member is on camera.
They would have to file some sort of civil suit I'd imagine.
-
As someone for whom DC is part of my "stomping grounds" growing up, this makes my blood boil. I had no idea the SI had entered into this agreement, and it strikes me as something that should be illegal, if it isn't. The SI is administered by the federal government and the vast majority of its employees are federal employees. It certainly is de facto a government institution, even if it's not one de jure.
-
I understand the Smithsonian has a policy that Fran does not approve of but the problem here is it feels like this is just another 'unfair world' play...
It's not just a policy, it's a ridiculous agreement with a commercial company that prevents independent creators from creating content on historical artifacts that are supposed to be owned by and funded mostly by that taxpayer. It's a very valid concern that goes way beyond Fran.
It IS ridiculous, but welcome to the world of governments being above the law. Why do so many areas have crap for broadband in the US? Because the carriers were allowed to enter into exclusivity agreements with the local municipalities. No one else can come in and offer services in that city or town, only the "approved" provider. And there is even a line item on the bill which is designated as "franchise fee" - aka, an outright bribe paid to the local government for being so kind as to allow Company A to be the only broadband provider in the neighborhood.
Those in other countries who point things like this out as the ills of Capitalism - this is not Capitalism AT ALL. This is a government permitted monopoly.
-
Or “crony capitalism”.
It disgusts me the extent to which American politicians have forgotten that their job is to serve the public, not special interests.
-
I mean could they enforce an EULA against someones use in any way of their own video and photographs taken on the Smithsonian's premises? If someone visited as a tourist and took video or photographs which they then later used for commercial purposes, say in a book or video documentary, what could the Smithsonian do?
The short answer is, probably nothing. EULA's are generally not worth the paper they are written on and aren't enforceable until a court decides otherwise. Whilst many countries treat EULA's as a "contract", it doesn't mean that all the contents of the contract are fair (or even legal).
-
I don't have a strong opinion one way or the other. In fact, I doubt I could care less but I don't get all the outrage. I don't see where people get the feeling they have a right to enter a museum on their own terms.
Many government institutions are run like businesses and have a business model which counts on income other than government subsidies. In general I think this is good. If the Smithsonian decreed no photography of any kind in their museums, like many museums do, and if you want photo or video you buy it from us then I think many people would agree they should be allowed to do that. Suppose the Smithsonian came to the conclusion that they can make more money with less effort if they subcontract that part of the business out. Why not? I don't get it.
Some people seem to have a moral objection against a private company making money off government contracts but I see nothing wrong with that. in fact I think it is good. if the government needs to do a job and that job can be done better and cheaper by private business then that is the way it should be done.
If the government needs to build a bridge I see nothing wrong with having a private company do it for them. Why not?
So the Smithsonian has a policy you don't like? Don't go there! I don't get the outrage. Why would you go somewhere where you are not content to be there? You don't like the way they treat you in a store? Shop somewhere else. It is very simple.
I do object to a government subcontracting to private business functions which can essentially only be done by the Government. The exercise of authority cannot reasonably be subcontracted. No private police, no private prisons or "detainment centers", no mercenary "contractors", etc. Even those red light camera traffic tickets are very questionable and have been shown to be quite corrupt.
But the policy of no commercial filming at the Smithsonian? Meh.
-
As someone for whom DC is part of my "stomping grounds" growing up, this makes my blood boil. I had no idea the SI had entered into this agreement, and it strikes me as something that should be illegal, if it isn't. The SI is administered by the federal government and the vast majority of its employees are federal employees. It certainly is de facto a government institution, even if it's not one de jure.
It seems there were questions from congress about it, but looks like nothing happened.
-
I don't have a strong opinion one way or the other. In fact, I doubt I could care less but I don't get all the outrage. I don't see where people get the feeling they have a right to enter a museum on their own terms.
Being able to film or photograph stuff in a majority taxpayer funded and administrated museum is a pretty reasonable expectation.
Ask any citizen if they think they should have the right to do that and the answer will be yes.
Some people seem to have a moral objection against a private company making money off government contracts but I see nothing wrong with that.
It is not a private company, it is a trust set up by the US government. More than two-thirds of the Smithsonian's workforce of some 6,300 persons are employees of the federal government.
So the Smithsonian has a policy you don't like? Don't go there! I don't get the outrage.
It's not your tax dollars paying for it.
-
Those in other countries who point things like this out as the ills of Capitalism - this is not Capitalism AT LL. This is a government permitted monopoly.
Apology if that offend you, its just we foreigner see thing differently, and forget that monopoly word you mentioned, its nothing.
As we saw too many and for too long, it looks like everything there has a price, and once the price is met, everything can be "capitalize".
Compare to say recent 737 Max fiasco, where Boeing "capitalized" the FAA >:D, self certifying on air plane certification ? :o ... or in law where a sex predator on young underage girls, convicted in court, still didn't serve any meaningful jail time (HERE (https://edition.cnn.com/2019/07/16/us/jeffrey-epstein-sexual-assault/index.html)), because the federal prosecutors had been .. again ... "capitalized" >:D ... just Google words like "Acosta Epstein". And no one get jail time, isn't that nice ?
Btw, at the ongoing matter now as we speak, it looks like your upcoming new Defence Secretary is a Raytheon defense contractor lobbyist, well, your military was and looks like will be heavily capitalized too. Buy Raytheon stock now as looks like they will be selling things like crazy. >:D
So back to square one, on Fran's issue to us foreigner, watching all these capitalism stunts happened for so long, it is so meaningless.
-
So the Smithsonian has a policy you don't like? Don't go there! I don't get the outrage. Why would you go somewhere where you are not content to be there? You don't like the way they treat you in a store? Shop somewhere else. It is very simple.
The Smithsonian is the United States' de facto national museum. It is where irreplaceable artifacts are sent for permanent safekeeping. It's absolutely reasonable to expect for them to remain accessible to everyone and for every (nondestructive) purpose. I think many items would never have been donated, had it been known that SI would restrict access based on commercial interests of a third party.
It's nothing like a store; it's not as though there are alternative sources for the vast majority of the objects in the collection. Or do you happen to know of a second Enola Gay? Or Julia Child's other famous home kitchen? What about the countless artworks?
-
Being able to film or photograph stuff in a majority taxpayer funded and administrated museum is a pretty reasonable expectation.
That is your opinion and there is nothing wrong with it but there are other opinions. I don't have one here. I am just saying that reasonable people can have different opinions. This is not a matter of right or wrong, it is a matter of opinion. The Smithsonian have decided on a certain policy which you may not like. Maybe if enough people write them about this they would change the policy. Or they could write their representatives in Congress. Maybe not enough people care enough.
Ask any citizen if they think they should have the right to do that and the answer will be yes.
Well, you just made that up. You don't know that. In any case, for the answer to be meaningful it would require the person being asked to be given full information about the Smithsonian and its finances. Nobody is going to sit through that and that is the reason representative democracy exists, so that elected people can dedicate their time to inform themselves and find solutions.
If you "ask any citizen" about anything other than their choice of ice cream you will probably get really stupid answers.
And you can get whatever answer you want by phrasing the question the right way:
The Smithsonian needs to supplement its income and they have two choices: (1) is charging visitors an admittance fee and (2) is charging for commercial filming.
The only people who are going to choose (1) are people doing commercial filming.
And it is not like this is unheard of. Here is the policy of the London British Museum.
https://www.britishmuseum.org/about_us/services/film_and_radio/filming_at_the_museum.aspx
Commercial filming in the Museum
Filming inside the Museum building requires a greater level of organisation and will therefore incur a charge. Please contact the Commercial Filming Team directly for our rate card.
All requests will be handled by the Commercial Filming Team via an enquiry sent to filming@britishmuseum.org
Please be advised that no filming may take place in the Museum at weekends unless cleared directly with the Commercial Filming Team.
All film crews will be required to have public liability insurance when filming on site.
There you go. Public liability insurance.
I bet this is not uncommon at all in government-sponsored museums around the world.
And I know many art museums outright ban all photography and filming without a permit, commercial or not.
Maybe things are different in the southern hemisphere.
-
When I googled Smithsonian shortly after this thread started I found some info going back many decades where the Smithsonian wanted to charge entry fees for an additional source of revenue rather than rely on the whims of Congress. Each time Congress denied them the right to an entry fee and one can only presume additional funding was granted so that public entry would remain free.
Now there is a commercial arrangement giving exclusive filming rights in exchange for some dosh to help run the place it's little wonder the arrangement impacted on others filming rights.
It might seem the only way to reverse this is to get additional Congress funding and let the existing filming arrangement expire. :popcorn:
-
When I googled Smithsonian shortly after this thread started I found some info going back many decades where the Smithsonian wanted to charge entry fees for an additional source of revenue rather than rely on the whims of Congress. Each time Congress denied them the right to an entry fee and one can only presume additional funding was granted so that public entry would remain free.
Now there is a commercial arrangement giving exclusive filming rights in exchange for some dosh to help run the place it's little wonder the arrangement impacted on others filming rights.
It might seem the only way to reverse this is to get additional Congress funding and let the existing filming arrangement expire. :popcorn:
That would be the only way to reverse it for a commercial entity. Considering this has to do with the government you can simply eliminate the contract by changing the rules. Being the government of tightly affiliated with it makes life easy. The house always wins.
-
That would be the only way to reverse it for a commercial entity. Considering this has to do with the government you can simply eliminate the contract by changing the rules. Being the government of tightly affiliated with it makes life easy. The house always wins.
That is not true in countries with a minimal rule of law and I believe America is in that group. The government cannot break a contract on a whim and it would have to indemnify the other party. And thank goodness that is the way it is.
If you ask people what they want they'll say they want to get more for free and pay lower taxes. And, of course, there is no shortage of politicians who promise to give them just that.
Smithsonian is not allowed to charge entry fees so they are forced to get funding where ever they can. Hey, you can go to the zoo for free. Yes, but get ready to pay for parking through the nose. Why? It's still the Smithsonian! I don't want to pay for parking!
People get used to free stuff and complain like babies when they have to pay for things they could previously get for free. What? Pay for parking on the street? You gotta be kidding me! The public street we all pay for? And I have to pay for parking my car there! Oh the humanity! What is the world coming to? This is the first step in the slippery slope of making us pay to use the streets!
In Spain all towns, big and small, rich and poor, even broke, spend thousands upon thousands on summer festivities. Concerts, bull running, bull fights, parties, the people expect it and it has to be done even if hospitals and schools have to do with less. The Spanish people consider it a primary function of local governments and it absolutely must be done. It would be considered heretic to suggest that maybe those who want to have fun could pay for the fun out of their own pockets. What is the government for if not to entertain us so we won't care so much by all they are stealing?
-
And you can get whatever answer you want by phrasing the question the right way:
The Smithsonian needs to supplement its income and they have two choices: (1) is charging visitors an admittance fee and (2) is charging for commercial filming.
The only people who are going to choose (1) are people doing commercial filming.
Don't you get it, man?? The issue isn't about them charging for commercial filming. It's that the agreement with Showtime means they block a lot of filming from occurring at all. And that a commercial entity essentially has the power to block access to items that "belong" to the public is an absolute outrage.
And it is not like this is unheard of. Here is the policy of the London British Museum.
https://www.britishmuseum.org/about_us/services/film_and_radio/filming_at_the_museum.aspx
Commercial filming in the Museum
Filming inside the Museum building requires a greater level of organisation and will therefore incur a charge. Please contact the Commercial Filming Team directly for our rate card.
All requests will be handled by the Commercial Filming Team via an enquiry sent to filming@britishmuseum.org
Please be advised that no filming may take place in the Museum at weekends unless cleared directly with the Commercial Filming Team.
All film crews will be required to have public liability insurance when filming on site.
There you go. Public liability insurance.
I bet this is not uncommon at all in government-sponsored museums around the world.
And I know many art museums outright ban all photography and filming without a permit, commercial or not.
Maybe things are different in the southern hemisphere.
What does that have to do with anything? Having liability insurance is a perfectly reasonable requirement. It's in no way a barrier to filming.
-
When I googled Smithsonian shortly after this thread started I found some info going back many decades where the Smithsonian wanted to charge entry fees for an additional source of revenue rather than rely on the whims of Congress. Each time Congress denied them the right to an entry fee and one can only presume additional funding was granted so that public entry would remain free.
Now there is a commercial arrangement giving exclusive filming rights in exchange for some dosh to help run the place it's little wonder the arrangement impacted on others filming rights.
It might seem the only way to reverse this is to get additional Congress funding and let the existing filming arrangement expire. :popcorn:
I spoke to someone who works for SI a little while ago, and according to them the congressional allocation is basically enough to cover payroll, and that's it. Most of the big donations are earmarked for specific functions, like when someone wants to have a big exhibit named after them that money can only be used toward that particular project. So other sources of revenue, such as small individual donations, special events, gift shop sales, etc, which are all *undirected* and therefore free to be used however the organization needs, are the only way they can pay for all of the hundreds of millions of dollars of essential operating costs. From the OP article, it sounds like SI didn't get any cash out of the deal, but the production of TV/film featuring their materials certainly has real value and gets them exposure or archival materials that they would have otherwise had to fund themselves.
-
Page 37 even raises the Smithsonian issue that forms the basis of the thread: "The Smithsonian Institution and its for-profit division, Smithsonian Business Ventures, made news because of their deal to distribute the Smithsonian film collection through Showtime, a commercial film distribution company, a subsidiary of the CBS Corporation. Due to the exclusive nature of that deal and the fee based distribution model agreed to by Smithsonian, a public, non-profit museum, the public, politicians, film makers and cultural heritage professionals cried foul." The entry is dated, however, as it suggests the deal was never concluded. What is interesting is that the Smithsonian had to appear before a House Subcommittee to account for the deal, proving that there was political oversight exercised on that particular deal.
The comparison fails because most films are still under copyright in the US. If Disney has their way, copyright will never expire again.
Instead consider Renascence age paintings where there is no copyright because of age, or the works of Beethoven, or the Declaration of Independence. The LEM has no copyright or other IP protection attached.
They would have to file some sort of civil suit I'd imagine.
That is what others have done in the past but all of the examples I found involved live broadcasts or reporting, like if someone broadcast a sports game live from an adjacent building so there was no issue with trespass or any sort of formal agreement.
Or “crony capitalism”.
Just to be clear, no matter what they said in response, this is Showtime going after minor content producers or "citizen journalist" exactly like Fran.
Tom Hayden, general manager of Smithsonian Networks, said the partners did not intend the relationship to be exclusionary; rather, he said, they are trying to provide filmmakers with an attractive platform on which to display their work.
How it excluding them not exclusionary? How does this help filmmakers other than those who work for Showtime?
Tom Hayden is a big fat liar. The Smithsonian should be ashamed. I expected no better of Showtime but they can die in a fire also.
It disgusts me the extent to which American politicians have forgotten that their job is to serve the public, not special interests.
There was almost never such a time when that was not the case.
-
And you can get whatever answer you want by phrasing the question the right way:
The Smithsonian needs to supplement its income and they have two choices: (1) is charging visitors an admittance fee and (2) is charging for commercial filming.
The only people who are going to choose (1) are people doing commercial filming.
Don't you get it, man?? The issue isn't about them charging for commercial filming. It's that the agreement with Showtime means they block a lot of filming from occurring at all. And that a commercial entity essentially has the power to block access to items that "belong" to the public is an absolute outrage.
Yes, that is the issue here. Showtime can veto anyone's "commercial" film access, and the Smithsonian actively play first line defense in that regard due to that contract and the fact they are a bureaucracy who love to follow such rules to the tea. e.g. by them checking Fran's Youtube channel and then going "nope, no access for you, too much gray area there".
Even if the Smithsonian gave the OK, if showtime found out about it they could have anyone shut down and booted out.
-
Those in other countries who point things like this out as the ills of Capitalism - this is not Capitalism AT LL. This is a government permitted monopoly.
Apology if that offend you, its just we foreigner see thing differently, and forget that monopoly word you mentioned, its nothing.
As we saw too many and for too long, it looks like everything there has a price, and once the price is met, everything can be "capitalize".
Compare to say recent 737 Max fiasco, where Boeing "capitalized" the FAA >:D, self certifying on air plane certification ? :o ... or in law where a sex predator on young underage girls, convicted in court, still didn't serve any meaningful jail time (HERE (https://edition.cnn.com/2019/07/16/us/jeffrey-epstein-sexual-assault/index.html)), because the federal prosecutors had been .. again ... "capitalized" >:D ... just Google words like "Acosta Epstein". And no one get jail time, isn't that nice ?
Btw, at the ongoing matter now as we speak, it looks like your upcoming new Defence Secretary is a Raytheon defense contractor lobbyist, well, your military was and looks like will be heavily capitalized too. Buy Raytheon stock now as looks like they will be selling things like crazy. >:D
So back to square one, on Fran's issue to us foreigner, watching all these capitalism stunts happened for so long, it is so meaningless.
Let me know when you find a system of government where bribery, cronyism and corruption doesn't take place throughout all levels because I've never seen one. Absolutely everything and everyone has a price, whether that's in dollars, goods, favors or preferential treatment is irrelevant and the particular "ism" involved doesn't change this.
-
Let me know when you find a system of government where bribery, cronyism and corruption doesn't take place throughout all levels because I've never seen one. Absolutely everything and everyone has a price, whether that's in dollars, goods, favors or preferential treatment is irrelevant and the particular "ism" involved doesn't change this.
It helps when the system of government does not encourage corruption as an emergent property.