No Filming The Smithsonian Collection For You!

[Dundarave]

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.

[EEVblog]

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.

[blacksheeplogic]

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...

[David Hess]

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 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.

[EEVblog]

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.

[EEVblog]

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.

[David Hess]

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.

[Dundarave]

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

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.

[Mr. Scram]

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.

[Mr. Scram]

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 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-

[EEVblog]

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.

[tooki]

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.

[rrinker]

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.

[tooki]

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.

[Halcyon]

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).

[soldar]

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.

[EEVblog]

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.

[EEVblog]

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.

[BravoV]

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  , self certifying on air plane certification ?  ... or in law where a sex predator on young underage girls, convicted in court, still didn't serve any meaningful jail time (HERE), because the federal prosecutors had been .. again ... "capitalized"  ... 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. 

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.

[tooki]

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?

[soldar]

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.

[tautech]

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. 

[Mr. Scram]

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. 

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.

[soldar]

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?

[tooki]

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.