I can haz copyright?

Melbourne IP Lawyer, Isobelle Fabian (@isobelleclare) watched a LOT of cat videos on the internet to make these points about copyright law in Australia. Isobelle writes:

They’re the archetypal internet time-wasting activity, starting out as deceptively simple entertainment and quickly developing into a full-blown addiction.

Yes, I’m talking about YouTube cat videos.

The internet and YouTube in particular seems to have an endless supply of cute cats doing cute things. Check out here and here and here and…well, you get the picture.

So it’s natural that when someone puts together an ad showing all the cool things you can do with your internet-connected TV/smartphone/microwave/whatever, they often want to put a cat video in there. But surprisingly enough, those adorable kitties hide a whole heap of thorny legal issues.

First off, let’s look at copyright. Videos are subject to copyright, which means that they can’t be reproduced without permission from the copyright holder. In terms of a home video like this, copyright will generally be owned by the person who filmed it (no, the cats don’t get any ownership rights). But thorny legal issue number one: how do you know the person who uploaded it to the internet is the same person as the copyright owner?

You might argue that people are unlikely to upload cat videos belonging to other people, and that may be true – but then look at a compilation video like this one. Unless the owner of that account has a completely ridiculous number of cats, it doesn’t look like they filmed all those clips themselves. And does anyone want to take a bet on whether they asked permission of all the copyright owners before using their clips in the compilation?

The lesson from this one is to pick a video which appears to have been uploaded by the owner of the copyright, who will usually be the same person as the owner of the cat. However, even if you ask the account holder (probably not a bad idea) you’re going to have difficulty knowing whether they have told you the truth. Essentially, by using the video, you will have to accept that there is a minor risk that it was uploaded in breach of copyright and that the true copyright owner will object to its use in your ad and demand the whole thing be taken down. It’s unlikely, but possible.

As if that wasn’t enough in regards to thorny legal issues, let’s look at the AANA Code of Ethics. Cruelty to animals is covered under the “Violence” section of the code, plus the Advertising Standards Board (which administers the code) does have a broad remit to look at ads in relation to “prevailing community standards” when they receive a complaint. And ads dealing with animal cruelty tend to receive plenty; just look at the examples in this practice note. So the next issue to ponder is whether your cat video shows an animal being hurt or just treated in an unacceptable way.

So what to do? Again, you’ll never be able to completely eliminate the risk of complaints, but good planning can minimise it. Try and pick a video where the cat has put itself into a funny situation, rather than being pushed into it by the owner. Steer away from ones where the cat is injured or sustains a severe shock – so yes, that means the sub-genre of “cats falling into water” is out. Look at your video with “prevailing community standards” in mind and then look at it again with the mind of an animal-lover. If in doubt, use it only in media that can be quickly withdrawn/changed in case of a complaint.

Often, people think that content which becomes a meme – like some of the more popular cat videos – won’t have legal issues associated with it, just because it does appear on every blog and website. But as soon as you start to make commercial use of it, it’s a whole different ball game. It’s not that the rules change, it’s just that it’s not worth enforcing them against individuals, while it is worth enforcing them against a corporation.

On the up side, said legal issues do have the side benefit of providing hours of entertainment to lawyers such as myself who can legitimately claim that watching cat videos is “work”…and I’m sticking to that excuse!

Isobelle Fabian works in-house for a large telecommunications company based in Melbourne, Australia. Read her blog here.