The Viacom Kerfuffle

June 10th, 2010

A couple of days ago John Green of Vlogbrothers posted a video about Viacom, YouTube, Spike.com’s video channel, and Jonathan Coulton. In it he discussed the Viacom YouTube suit and used my “Flickr” video to illustrate something. Watch the video for a complete explanation, but in a nutshell he was pointing out that Viacom was serving up my “Flickr” video with ads on while at the same time suing YouTube for serving up Viacom content with ads on YouTube. He encouraged people to email Viacom asking them where my proceeds from the ad revenue were, said proceeds being either $37 or $13,000 depending on how you do the math.

You know how I like to jump on a bandwagon – for goodness sake, my Twitter icon is still green even though democracy has long since been restored in Iran. I’m a sheep. And I love to bash all the evil corporations as much as the next fellow, and it certainly seemed to me that I had been wronged. I didn’t remember ever giving Viacom permission to display “Flickr.” Except that I had.

Soon after tweeting that Viacom owed me $37 and making a joke about how I was going to sue them for it, I was contacted by a VP of Corporate Communications at Viacom, let’s call him Downtown Julie Brown. Downtown Julie Brown explained that when they caught wind of the issue they immediately took down the “Flickr” video from Spike. Then they looked into their records and found an email exchange from 2006 where I had spoken to a producer of a VH1 TV show about viral videos who was also in charge of the viral video channel at iFilm, also a Viacom property. In this email exchange (which they had to forward me because I had only a vague recollection of it), the producer and I talked about the possibility of airing “Flickr” on the VH1 show about viral videos – more on this later. He also asked if it would be OK if they put “Flickr” on iFilm to which I responded “Looks good!” without a moment’s hesitation. Downtown Julie Brown explained to me that iFilm was later rebranded as Spike, so really I HAD given Viacom permission to display the video.

But of course the real issue was the ads. Somebody was making money from those ads and it wasn’t me, and it wasn’t the owners of the copyright on the Creative Commons licensed photos I used. This is the $37 we’re talking about. The question was, did iFilm have ads at the time? I asked Downtown Julie Brown about this, and he said that at that time iFilm did have ads. He doesn’t know whether they were embedded in the video the way they are now, or just some kind of banner ad on the page, but he says that there were definitely ads on the video pages.

So who’s the idiot? Me. I should have investigated the nature of iFilm a little more before saying yes – if the display of the video was commercial in nature, which it appears to have been, then permission was not mine to give. This is because the photos are CC licensed for noncommercial use. I would have to get permission from all those photographers to use the video in a commercial way. I confess that at the time I was so thrilled that anyone cared I just didn’t think about it. Neither did I think about the fact that the video could also not appear on television for the same reason. Thankfully they decided to air a video of some hot girls kissing instead.

So please stop emailing Viacom about my $37 (and note that it was never my $37 to begin with because of Creative Commons). I’m sorry to have to stop a fun pitchfork waving session, but it appears that at least in the case of me and my video, Viacom has tried to do the right thing. I’m also sorry to derail what was an exciting traffic situation for the Vlogbrothers, both of whom I admire greatly and think are fantastic. I will also say that all my discussions with Downtown Julie Brown, after a semi-bristly kind of legal posturing beginning on both our parts, were frank and honest and civil. It is nice to have a conversation like that about these sorts of things, and it gives me hope. [UPDATE: Also, a bunch of people in Downtown Julie Brown's office got together and donated $500 to this cause yesterday in my name, which was very kind. I would have spent the $37 on drugs probably.]

Because here’s the problem: this stuff is COMPLICATED. I didn’t remember I had given them permission, and at the time I didn’t even think it through to realize I was not technically able to give permission. Then iFilm became Spike without me noticing. It’s possible things changed from iFilm to Spike in the way ads are displayed and used, but I’d be willing to bet it’s pretty hard for a company like Viacom or YouTube to easily contact all the owners of all the IP that’s in their database and let them know about that sort of change. There’s a crazy lattice of IP and companies and copyright owners and terms of service on the internet, and nobody’s got control of it, all of which is sort of the point. And look, I think about this stuff VERY HARD all the time, and I try VERY HARD to always do the right thing and even I got it wrong. Over the last few years I’ve met and talked with a lot of people on all sides of these issues, and while I’ve disagreed with some of them, I’ve never met one who didn’t think they were doing their best to do the right thing. As tempting as it is to imagine, companies are almost never headed up by people who twirl their mustaches and go mwa-ha-ha. It’s complicated, nobody knows how to fix it, and it’s likely to keep a lot of lawyers in business for a long time.

So anyway, sorry about the kerfuffle. Sorry about the $37. Sorry about the green Twitter icon. Back to writing songs about mustaches.

20 Responses to “The Viacom Kerfuffle”

  1. bobfard says:

    when he said $13,000 in the video i was like =D
    then he said $37 and i was like D=

  2. sevinPackage says:

    Good thing we got all THAT out of the way.

    Now, we’ll have to see if Viacom have anything to say about my current project (of which I will soon be chatting with JoCo and Len about)…. hopefully not, but we shall see.

  3. Christine Nordhaus says:

    This speaks to me of the kind of thing an excited musician/internet superstar (in a perfect world) shouldn’t necessarily have to worry about, but in our imperfect world really needs to consider.

    It seems like way back when you were thrilled that they noticed you said, “Yes!!1″ and potentially set yourself (and the photo folks) up for exploitation. I agree Viacom and most people are not evil, but I do think some companies/organizations/people do arrange things in ways that are beneficial to them without too much concern over what might become of the little guy/internet superstar. I mean what’s a little exploitation between friends?

    It’s complicated, and you remain a gentleman in your handling of this situation. I’m glad I kept my pitchfork out of the fight.

  4. Autumnraina says:

    Alrighty, then. Carry on. I’m eagerly awaiting songs about mustaches! :)

  5. boats says:

    It’s funny. You said yes to iFilm because you wanted publicity. I wonder how much publicity you’ll get from that decision now the way things have unfolded?

  6. Zugaii says:

    In capitalist country, (sales) pitch forks you!

  7. Kerrin says:

    Jonathan…not perfect…does not comput! :)

  8. SLAM says:

    Just Say No to drugs, JoCo!

    Otherwise your wholesome image will be ruined.

    P.S. Do you twirl your own mustache and say Mwahaha while song-writing?

  9. JoAnn Abbott says:

    “my Twitter icon is still green even though democracy has long since been restored in Iran. ”
    Um- it was? When? I am not seeing the little sarcasm * so I don’t know if you mean this or not. Far as I know, Iran is a theocratic oligarchy.

  10. Brett Glass says:

    Y’know, it’d be simpler if there were an ASCAP for online video. Then, artists and musicians would simply get paid….

  11. Vladimir Velasquez says:

    So they used a video without your permission but you had given them permission years ago when they were under a different name, and you shouldn’t have gotten money for the video sice they weren’t your pictures then? More complicated then a Japanese anime

  12. @Brett Glass

    So would an ASCAP have avoided the need for any buttplugs*?

    *http://www.urbandictionary.com/define.php?term=buttplug

  13. Rich says:

    What about “Code Monkey”? Did you give permission for that?

  14. The most important point in all of this is that Viacom is a bunch of stark raving hypocrites who are damaging the innovative capacity of the web.

    At the same time they’re clogging up the nation’s creative juices pushing for longer and longer copyright protection limits and issuing a blizzard of takedown notices to YouTube ….

    ….they’re secretly uploading their content to YouTube to promote themselves AND outright stealing content from people like JoCo and the other lovely folks who use Creative Commons licensing.

    I hope everyone at Viacom dies of crotch rot. Well…maybe not dies – but suffers a very painful and uncomfortable weekend because of it.

  15. Ramerez! says:

    TL;DR
    how about another video?

  16. Kevin says:

    I think the best thing we can all do is direct our efforts and money to charities like The Guitar Project, and others.

  17. Megs says:

    As a future lawyer, the last sentence in the penultimate paragraph made me smile (I’m practicing using needlessly large words – also penultimate is seriously underrated). Seriously though, as someone mentioned earlier, it is a very good lesson for creative types just starting out! I agree, it’s a shame that folks have to watch out for that kind of thing, but I’m not sure it’s avoidable in a world as complex as ours.

  18. Roman says:

    If it’s any consolation, Jonathan, you’re listed on the site DefectiveByDesign.org – a massive anti-DRM campaign – under the “Guide to DRM-free living” http://www.defectivebydesign.org/guide – which is to say, you’re being recognized for your anti-DRM attitude (anti-DRMitude, as it’s known).

  19. John Snyder says:

    This doesn’t somehow let Jamba Juice off the hook with David Rees, does it?

  20. TimeKillerSP says:

    of course the cost to resolve this issue (Downtown Julie Brown’s salary + executive assistant’s wages during research and communication) was probably more than $37.

    though probably not more than $537.

    whatever. as a slob who works in a restaurant i hope everyone went out to eat to celebrate another stillbirth lawsuit.