No Filming The Smithsonian Collection For You!

[EEVblog]

 
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

[BravoV]

Whats wrong with that ? Its a true pure form of capitalism, in the country based and believes on capitalism.

[SiliconWizard]

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.

[Mr. Scram]

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.

[soldar]

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.

[David Hess]

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

Also, good for Fran for blatantly reporting on this issue.

[SiliconWizard]

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.

[Circlotron]

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.

[Marco]

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.

[David Hess]

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.

[Mr. Scram]

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.

[Mr. Scram]

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?

[Marco]

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?

[Mr. Scram]

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.

[Dundarave]

From 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.

[Halcyon]

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.

[soldar]

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.

[EEVblog]

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.

[EEVblog]

*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.

[Halcyon]

*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.

[David Hess]

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.

[soldar]

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?

[David Hess]

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.

[soldar]

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."

[EEVblog]

*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!"