Copyright Ownership of Audio Segment on YouTube

[BearaTone]

State is California.

Hello,

I uploaded a five minute 'audio only' video onto YouTube that is of me talking to a speaker at a seminar. The speaker has requested I take the video off YouTube claiming it's a copyright violation of his material.

The 'audio only' video was uploaded 5 years ago, but the actual recording was made 10 years ago at a two hour seminar in California that I paid $75 to attend. There were about 100 people in attendance and several were recording the speaker with handheld voice recorders like I did. The speaker never said recording wasn't allowed and he didn't post any kind of 'no recording' notice on his website where I bought the ticket. Also, I sat next to his business manager when I was talking to him and the business manager saw me recording but didn't tell me to stop.

The speaker now sells the audio online as a MP3, thus making money from my questions and interaction with him. He didn't tell me or the audience he was going to do this. He didn't have a notice on his website where I bought the ticket that informed people he would do this. He also sells a MP4 that has video of me talking with him during the segment I recorded. The video is taken from my backside and only shows the back of my head and the front of his face.

1. Do I have a copyright to the audio I recorded?
2. Do I have the right to keep the audio segment on YouTube?
3. Do I have a right to have him stop selling the audio MP3s or MP4s of me?
4. Do I have a right to any money his sales have made from these MP3s or MP4s?

 

[quincy]

State is California.

Hello,

I uploaded a five minute 'audio only' video onto YouTube that is of me talking to a speaker at a seminar. The speaker has requested I take the video off YouTube claiming it's a copyright violation of his material.

The 'audio only' video was uploaded 5 years ago, but the actual recording was made 10 years ago at a two hour seminar in California that I paid $75 to attend. There were about 100 people in attendance and several were recording the speaker with handheld voice recorders like I did. The speaker never said recording wasn't allowed and he didn't post any kind of 'no recording' notice on his website where I bought the ticket. Also, I sat next to his business manager when I was talking to him and the business manager saw me recording but didn't tell me to stop.

The speaker now sells the audio online as a MP3, thus making money from my questions and interaction with him. He didn't tell me or the audience he was going to do this. He didn't have a notice on his website where I bought the ticket that informed people he would do this. He also sells a MP4 that has video of me talking with him during the segment I recorded. The video is taken from my backside and only shows the back of my head and the front of his face.

1. Do I have a copyright to the audio I recorded?
2. Do I have the right to keep the audio segment on YouTube?
3. Do I have a right to have him stop selling the audio MP3s or MP4s of me?
4. Do I have a right to any money his sales have made from these MP3s or MP4s?

You hold the copyright in your recording of the presentation. But the contents of the presentation (if scripted) belong to the speaker. And the copyright in the video recording belongs to videographer.

This would be absent any agreement to the contrary that transfers these rights. For example, there could have been an agreement made between the speaker and the videographer to transfer or share the rights in the video.

Most speakers will speak from scripted text and the rights to the words, therefore, belong to the speaker, who holds the copyright in the text.

You do not have the right to infringe on the rights of the speaker's copyrighted material by publishing his copyrighted material without his authorization, although your recording can be for your own personal use.

You do not have the right to stop him from selling his audio recordings of his seminar.

You do not have a right to any money from his sales.

I am a bit surprised there were no restrictions made on attendees recording the seminar. You are sure nothing was printed on the ticket itself?

Has your YouTube video been pulled from YouTube yet? In other words, did the seminar speaker file a DMCA takedown notice to have your video removed from its place online?

 

[BearaTone]

You hold the copyright in your recording of the presentation. But the contents of the presentation (if scripted) belong to the speaker. And the copyright in the video recording belongs to videographer.

This would be absent any agreement to the contrary that transfers these rights. For example, there could have been an agreement made between the speaker and the videographer to transfer or share the rights in the video.

Most speakers will speak from scripted text and the rights to the words, therefore, belong to the speaker, who holds the copyright in the text.

You do not have the right to infringe on the rights of the speaker's copyrighted material by publishing his copyrighted material without his authorization, although your recording can be for your own personal use.

You do not have the right to stop him from selling his audio recordings of his seminar.

You do not have a right to any money from his sales.

I am a bit surprised there were no restrictions made on attendees recording the seminar. You are sure nothing was printed on the ticket itself?

Has your YouTube video been pulled from YouTube yet? In other words, did the seminar speaker file a DMCA takedown notice to have your video removed from its place online?

More details:
The speaker had a topic for his seminar but what he said was entirely spontaneous, it wasn't pre-written with notes he followed and it wasn't based on any works he had published. The spontaneity is part of this speaker's appeal to many who attend. My questions of him were not even related to his seminar topic and he had no idea in advance what I would be asking him. The ground we covered was entirely new.

The speaker didn't have any notices on his website nor at the seminar about not recording him, and there were no tickets for entrance. People paid online and their name was put on a list to gain entrance on the day of seminar, or they paid at the door. There were several other attendees recording the speaker. Some I spoke with afterwards told me they had recorded most if not all of the speaker's two hour seminar. I recorded only the five minutes of my interaction that I had with the speaker, not the whole presentation. I sat next to the speaker's business manager who saw me recording the speaker and the business manager said nothing to me about recordings not being allowed.

When you say that I hold the copyright in my recording of the presentation, what can I do with that copyright?

The speaker has threatened to have the video taken down from YouTube if I don't remove it in 72 hours, but YouTube has an option to have a video returned via a counter appeal.

If I hold the copyright in my recording of the presentation, (I'm not clear yet what all that means), wouldn't I have the right to have the audio-only video remain on YouTube?

Also, doesn't a speaker have to get a waiver or a release form from people in attendance before he can videotape them and sell videos of their interactions with him? He didn't notify the audience that he was going to sell videotapes of the people there.

 

[quincy]

More details:
The speaker had a topic for his seminar but what he said was entirely spontaneous, it wasn't pre-written with notes he followed and it wasn't based on any works he had published. The spontaneity is part of this speaker's appeal to many who attend. My questions of him were not even related to his seminar topic and he had no idea in advance what I would be asking him. The ground we covered was entirely new.

The speaker didn't have any notices on his website nor at the seminar about not recording him, and there were no tickets for entrance. People paid online and their name was put on a list to gain entrance on the day of seminar, or they paid at the door. There were several other attendees recording the speaker. Some I spoke with afterwards told me they had recorded most if not all of the speaker's two hour seminar. I recorded only the five minutes of my interaction that I had with the speaker, not the whole presentation. I sat next to the speaker's business manager who saw me recording the speaker and the business manager said nothing to me about recordings not being allowed.

When you say that I hold the copyright in my recording of the presentation, what can I do with that copyright?

The speaker has threatened to have the video taken down from YouTube if I don't remove it in 72 hours, but YouTube has an option to have a video returned via a counter appeal.

If I hold the copyright in my recording of the presentation, (I'm not clear yet what all that means), wouldn't I have the right to have the audio-only video remain on YouTube?

Also, doesn't a speaker have to get a waiver or a release form from people in attendance before he can videotape them and sell videos of their interactions with him? He didn't notify the audience that he was going to sell videotapes of the people there.

You own the copyright in your recording, because you created the recording. Unfortunately, your use of the recording is restricted to your own personal use.

You must get the permission of the other copyright holder (the speaker) to distribute or publish your recording, just as the speaker would need to get your permission if he wanted to use your recording of his presentation. You would both have to work together to make anything other than personal use of the material.

However, the speaker does not need your recording or your permission, because he is not using your recording of the presentation. He is using his own (or one he has apparently acquired rights to).

Recordings are often allowed for the convenience of listeners, especially for those with disabilities, but they have limited usefulness and generally no commercial usefulness.

If you wish to argue copyright ownership with the speaker, you could have the facts reviewed by an IP attorney in your area to see where you stand as far as rights go in the publication of the speaker's seminar online, and then, if you choose not to remove the YouTube video as demanded and the speaker files a DMCA takedown notice, you can answer the DMCA takedown notice with a counter-notice. The speaker's next move after a counter-notice would be filing a copyright infringement lawsuit.

I tend to doubt the speaker was not working from a script or notes, but I suppose it is possible.

 

[BearaTone]

You own the copyright in your recording, because you created the recording. Unfortunately, your use of the recording is restricted to your own personal use.

You must get the permission of the other copyright holder (the speaker) to distribute or publish your recording, just as the speaker would need to get your permission if he wanted to use your recording of his presentation. You would both have to work together to make anything other than personal use of the material.

However, the speaker does not need your recording or your permission, because he is not using your recording of the presentation. He is using his own (or one he has apparently acquired rights to).

Recordings are often allowed for the convenience of listeners, especially for those with disabilities, but they have limited usefulness and generally no commercial usefulness.

For my clarification:
It sounds like the speaker can use his recording of me without my permission, but I can't use my recording of him without his permission. Is that correct? If it is, is it possible to expand on why it is that the speaker doesn't need my permission while I need his?

Also, doesn't a speaker have to get a waiver or a release form from people in attendance before he can videotape them and sell videos of their interactions with him? He didn't notify the audience that he was going to sell videotapes of the people there.

 

[quincy]

For my clarification:
It sounds like the speaker can use his recording of me without my permission, but I can't use my recording of him without his permission. Is that correct? If it is, is it possible to expand on why it is that the speaker doesn't need my permission while I need his?

This is correct. The speaker can use his own recording of the presentation (or a recording he has acquired rights to). He has recorded his own copyrighted words (again, this is if he is working from a script or an underlying written work), so the speaker owns both the words he has spoken and the recording of the words.

Your recording, on the other hand, is only of his copyrighted words. You own your recording because you made it, but you do not own his copyrighted words. Therefore, you would need his permission to publish your recording but he does not need yours.

The only way he might need your permission is if privacy rights or publicity rights come into play. This was a presentation to the ticket-buying public and the attendees had no expectation of privacy in this public setting (there are a few exceptions to this privacy rule but they do not appear to apply to anything you have said).

Also, doesn't a speaker have to get a waiver or a release form from people in attendance before he can videotape them and sell videos of their interactions with him? He didn't notify the audience that he was going to sell videotapes of the people there.

No. The speaker does not need the permission of the attendees to videotape them at his presentation, unless he uses an audience member to promote his videotapes (using the individual's image in a commercial manner). If the attendees are incidental to the whole of the video, there are no publicity rights that can be claimed by the attendees.

Again, this is all assuming the speaker was speaking from a pre-written speech or notes, and most speakers giving presentations will work from a script. Extemporaneous speech would not be subject to a copyright. For a work to have copyright protection, it must be fixed in a tangible form (written, drawn, recorded, whatever).

That is why I mentioned consulting with an IP attorney in your area, if you wish to file a counter-notice on any DMCA takedown notice. You probably do not want to be sued for copyright infringement so you will either want to meet the speaker's demands and remove your video from YouTube, or know that you have a counter-notice with merit.

 

[quincy]

Okay. Perhaps I can provide an example that will explain it all better.

Say you attend an event where Shel Silverstein recites his book, "The Giving Tree." He may not read the words directly from the book because he knows the words - but the presentation is still from his pre-written copyrighted work.

The presentation is recorded by you. You own the copy of your recording because you made it, but you have gained no rights in "The Giving Tree." All rights to Shel Silverstein's work remains with him. You can use your recording for your personal use only.

And, let's say Shel Silverstein records his presentation, as well. He not only owns his own recording but he also owns the words spoken. He has copyrights in both the words and the recording.

He would not need your permission to publish his video or audio recording of him reading his own words, even if some of those who attended his presentation were captured in the audiotape or videotape. No privacy rights were violated and no publicity rights were violated and no copyrights were violated with his recording.

You, on the other hand, would need Shel Silverstein's permission to publish HIS copyrighted work, even though you own the recording you made of his recitation.



(as a note: I read "The Giving Tree" to one of my kids earlier tonight. The book is a bit depressing. )

 

[justalayman]

quincy, how would the speaker hold any copyrights to the answers to questions posed by the OP? They would be spontaneous and as such, nothing in a tangible form until recorded by the OP and others. In fact, the OP said this:

.
My questions of him were not even related to his seminar topic and he had no idea in advance what I would be asking him. The ground we covered was entirely new.

I am as confused as the OP is in your response as you specifically stated because the OP's questions were not scripted (although it was never asked but only presumed) he holds no copyrights to the questions asked but just the same, the answers could not have been scripted since the questions were not known ahead of time yet the speaker holds a copyright to his own questions. What am I missing?

 

[quincy]

quincy, how would the speaker hold any copyrights to the answers to questions posed by the OP? They would be spontaneous and as such, nothing in a tangible form until recorded by the OP and others. In fact, the OP said this:

I am as confused as the OP is in your response as you specifically stated because the OP's questions were not scripted (although it was never asked but only presumed) he holds no copyrights to the questions asked but just the same, the answers could not have been scripted since the questions were not known ahead of time yet the speaker holds a copyright to his own questions. What am I missing?

Sorry if my answers are confusing. If you are missing anything it would be my (what I thought was) repeated "this is assuming the presentation was scripted or from an underlying written work."

IF the speaker's presentation was entirely unscripted, or if all of what was recorded by BearaTone was entirely unscripted, then no copyright existed in the speaker's words until it was recorded or otherwise fixed in a tangible form.

IF the recording captured nothing that was copyright protected, the YouTube recording would likewise not violate any copyrights.

That said, the speaker has his copyrighted recording of his presentation that he is marketing for sale and if he has registered his recordings with the copyright office, he will be the presumed owner of the recording of the presentation. This is an arguable presumption, however.

Although BearaTone's portion of the presentation could be seen as infringing on the rights of the speaker to his own recording of the presentation, BearaTone can argue ownership in a counter-notice - if the speaker moves to have the YouTube video removed with a DMCA notice.

BUT, BearaTone will want to be secure in his rights and the lack of rights of the speaker, if he plans to respond to a takedown notice with a counter-notice. If he challenges the speaker's copyrights, the speaker's next move could be an infringement suit against BearaTone - and BearaTone has a chance of losing the suit.

I would not feel comfortable telling BearaTone to leave the video in place to see what happens. A personal review of both the presentation videos the speaker is marketing and BearaTone's video would be needed. I recommend, if BearaTone wishes to fight the notice he received from the presentation speaker, that he speak with an IP attorney in his area before doing so.

 

[BearaTone]

Sorry if my answers are confusing. If you are missing anything it would be my (what I thought was) repeated "this is assuming the presentation was scripted or from an underlying written work."

IF the speaker's presentation was entirely unscripted, or if all of what was recorded by BearaTone was entirely unscripted, then no copyright existed in the speaker's words until it was recorded or otherwise fixed in a tangible form.

IF the recording captured nothing that was copyright protected, the YouTube recording would likewise not violate any copyrights.

That said, the speaker has his copyrighted recording of his presentation that he is marketing for sale and if he has registered his recordings with the copyright office, he will be the presumed owner of the recording of the presentation. This is an arguable presumption, however.

Although BearaTone's portion of the presentation could be seen as infringing on the rights of the speaker to his own recording of the presentation, BearaTone can argue ownership in a counter-notice - if the speaker moves to have the YouTube video removed with a DMCA notice.

BUT, BearaTone will want to be secure in his rights and the lack of rights of the speaker, if he plans to respond to a takedown notice with a counter-notice. If he challenges the speaker's copyrights, the speaker's next move could be an infringement suit against BearaTone - and BearaTone has a chance of losing the suit.

I would not feel comfortable telling BearaTone to leave the video in place to see what happens. A personal review of both the presentation videos the speaker is marketing and BearaTone's video would be needed. I recommend, if BearaTone wishes to fight the notice he received from the presentation speaker, that he speak with an IP attorney in his area before doing so.

Thank you Quincy,
It's making more sense to me, and I can consult with an IP attorney in my area as you suggested. And the example about reciting poetry helps.

Regarding the speaker and working from a script. What the speaker does is unusual in the sense that he presents the idea that his words come through him in an unplanned or extemporaneous way. As though he is up there without a net, so to speak. No outline, just channeling whatever comes through him in the moment. He even says he is channeling his words. He offers people the idea that he is presenting new and fresh perspectives that haven't been written about already; haven't even been considered before. Leading edge information.

And here is more detail about my recording's content:
My five minute audio recording is about 50% his words and 50% my words. In the audio, I ask him a couple of questions, he answers, and I share an idea with him. So would he need permission from me to publish the 50% that I am contributing to the five minute segment or is it only me that needs permission to publish his 50% contribution?

 

[quincy]

Thank you Quincy,
It's making more sense to me, and I can consult with an IP attorney in my area as you suggested. And the example about reciting poetry helps.

Regarding the speaker and working from a script. What the speaker does is unusual in the sense that he presents the idea that his words come through him in an unplanned or extemporaneous way. As though he is up there without a net, so to speak. No outline, just channeling whatever comes through him in the moment. He even says he is channeling his words. He offers people the idea that he is presenting new and fresh perspectives that haven't been written about already; haven't even been considered before. Leading edge information.

And here is more detail about my recording's content:
My five minute audio recording is about 50% his words and 50% my words. In the audio, I ask him a couple of questions, he answers, and I share an idea with him. So would he need permission from me to publish the 50% that I am contributing to the five minute segment or is it only me that needs permission to publish his 50% contribution?

If you both recorded the same thing, and nothing was scripted or otherwise rights-protected, then you would both own all of the copyrights in your own recordings. The recordings would be considered independent creations and one recording would not infringe on the rights of the other.

This does not mean that the speaker trying to market his videos will not cause a fuss. He apparently already has, and he could continue to demand you remove of your recording from YouTube and he could file a DMCA takedown notice to get it removed.

Despite his presentation-claims to the contrary, I would bet he is working from a script - not in the question and answer portion, perhaps, but during the rest of it. But I am not much of a betting person because I tend to lose my bets, so he might be the odd speaker who can speak for two hours without a written outline or notes or a script.

A personal review is still necessary to determine if there are ANY rights (perhaps trademark rights?) that you might be infringing with your recording and how you have presented it on YouTube, and a personal review of both videos is what I recommend if you wish to challenge the speaker's claims of infringement. You will want to make sure you are on solid legal ground.

Good luck.

 

[BearaTone]

If you both recorded the same thing, and nothing was scripted or otherwise rights-protected, then you would both own all of the copyrights in your own recordings. The recordings would be considered independent creations and one recording would not infringe on the rights of the other.

This does not mean that the speaker trying to market his videos will not cause a fuss. He apparently already has, and he could continue to demand you remove of your recording from YouTube and he could file a DMCA takedown notice to get it removed.

Despite his presentation-claims to the contrary, I would bet he is working from a script - not in the question and answer portion, perhaps, but during the rest of it. But I am not much of a betting person because I tend to lose my bets, so he might be the odd speaker who can speak for two hours without a written outline or notes or a script.

A personal review is still necessary to determine if there are ANY rights (perhaps trademark rights?) that you might be infringing with your recording and how you have presented it on YouTube, and a personal review of both videos is what I recommend if you wish to challenge the speaker's claims of infringement. You will want to make sure you are on solid legal ground.

Good luck.

Got it,
Thanks again Quincy....I really appreciate it!

And thank you justalayman for your input as well.

 

[quincy]

You're welcome, BearaTone.

And thank you for the thanks. Both justalayman and I appreciate them.