NCDCR Intellectual Property Letter 2010

8/10/2019 NCDCR Intellectual Property Letter 2010

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9/7/10

Steve ClaggettDepartment of Cultural Resources109 East Jones StreetMSC 4601Raleigh, NC 27699-4601

Dear Steve,

First, my apologies for the length of this letter. I hope to address the complex issue ofvideo rights and protecting intellectual property in the digital age as it relates to the

Queen Annes Revenge Shipwreck Project and the need to carefully examine howtechnology has forever complicated film and video rights agreements.

This letter comes out of a request from John Masters of Intersal Inc. for copies of thelicensing agreements and royalties that Nautilus Productions LLC has paid to Intersal asthe film and video rights holder on the project. He should have those copies by the end ofthe week.

First a little background; As you know I have been the volunteer, project videographer onthe QAR Project since 1998 and as such my duties have consisted of documenting therecovery of artifacts from the wreck site and providing underwater video services tovisiting documentary production companies and news organizations. I maintain the 12year video record of the project which now consists of over 100 tapes and nearly 100hours of footage. Each year during the 4-6 weeks of the project I provide my services,video equipment, supplies, room and board at no cost to the State of North Carolina. Thisresults in the potential loss of $900-$1500 per day of income from paying clients whileIm on the project. In order to help offset the heavy financial penalty the project createsfor me I officially entered into an agreement with Intersal in 2007 to pay them a royaltyon any stock footage sales I receive. I also contract with visiting production companieson a freelance basis for the couple of days when they are filming on the project. In mybest years I have recovered only about 20% of my lost revenue or $.20 on the dollar.Freelance video work and stock footage sales from the project are my only source ofincome from the project and so Im very careful to protect those resources.

Regardless of the personal financial drain I think the QAR project is of such importanceto the archaeological community and the people of North Carolina that this arrangementis worthwhile for me. Additionally, despite being a work for hire to outside productioncompanies both Nautilus Productions and Intersal require visiting filmmakers to providecopies of all the underwater footage shot for them for research and study purposes and


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this footage becomes part of the permanent archive of video material available for use byQAR staff.

To date Intersal and Nautilus Productions have supported at least at least four BBCprojects, two National Geographic documentaries, two PBS docs, two German TV docs,

three History Channel docs, one Italian TV doc, one Voice of America project, twoDiscovery Channel docs, one South Carolina Educational Television doc, one EastCarolina University documentary and numerous other news stories and feature pieces onbroadcast and cable television.

During the course of the past thirteen years the world of intellectual property and thestorage and delivery of video content has changed in almost unimaginable ways. Whenthe QAR Project first started video was delivered over the air, on cable or via DVDs.Maintaining some control over where and how video was used and delivered was fairlyeasy as only broadcasters could afford the equipment to record and deliver programming.

Thats all gone.

Now anyone with a cheap high definition camera can broadcast high quality video to theworld via the internet. There are literally dozens of add ons, plug ins and programs thatmake downloading, recording and theft of video from the internet both easy andaffordable if not free. We have a conference call today to discuss expanded outreach forthis years QAR Project through blogging, Facebook and the possible posting of videoclips from the project on the web. All initiatives which I whole heartedly support. I dohave some cautions however regarding the use of digital media and as an outreach tool.

Failure to address intellectual property issues regarding digital media can lead to thefollowing problems;1. Loss of message and context as the media propagates around the globe.2. Misuse, abuse or theft.3. Damage to the project or institution as a result.4. Web video sites routinely poach video from other sites and while your original videomay have had corresponding information with it that info can be stripped away on othersites.

Allow me to cite real world examples of these problems. Ill use Google/YouTube as theexample since they are the single greatest facilitators of the theft of intellectual propertyon the planet.

One; A colleague of mine worked briefly for a production company that regularlycontracts with Discovery, the History Channel and others to produce documentaries fortelevision. This company regularly poached video from the web and YouTube withoutattribution, permission or compensation. YouTubes Terms of Service specificallyallow this activity.


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Two; In working out an agreement to shoot footage at the Jean Lafitte National HistoricalPark and Preserve (NPS) for the Mystery Mardi Gras Shipwreck documentary I had toagree that my footage would never be used in a pornographic film. They had encountereda problem where stock footage from their park ended up in an x-rated film.

Three; This past Fall a group of high school students in Spokane, WA created a minidocumentary about Blackbeard the pirate. They subsequently won a statewide historycontest sponsored by a local museum and then posted their video on YouTube andFacebook. In their winning video they used underwater footage from the project withoutattribution or permission that had been lifted from the web and manipulated to hide anywatermarks put there to help prevent such abuse.

Four; This Spring the Alabama Department of Natural Resources used a picture of a SandTiger shark on the State website that had been stolen from my website. The image hadbeen manipulated in Photoshop to remove the watermark and was used withoutattribution, permission or payment of a license fee despite a clear copyright notice on my

website.

Five; I routinely find video that Ive posted on the web on sites around the globe. Moreoften this video was originally grabbed from videos Ive posted on YouTube.

Six; ABC News used the news release footage I provide to news organizations for astory about the project. This footage has a burned in bug or logo in the upper right corneras seen in the QARStill.jpgexample below. ABC blew up or expanded the video so asto hide the bug and used the footage in the lower left portion of the screen.

All of the above are real world examples of the common problems faced by all of us inthe digital realm while trying to protect intellectual property. They are furtherexacerbated by terms of service employed by; YouTube, Vimeo, Veoh and just aboutevery website (including networks, cable channels and corporations) that hosts video onthe web. For example YouTubes Terms of Service (item 6C) read;

For clarity, you retain all of your ownership rights in your Content. However, bysubmitting Content to YouTube, you hereby grant YouTube a worldwide, non-

exclusive, royalty-free, sublicenseable and transferable license to use, reproduce,

distribute, prepare derivative works of, display, and perform the Content in connection

with the Service and YouTube's (and its successors' and affiliates') business, including

without limitation for promoting and redistributing part or all of the Service (and

derivative works thereof) in any media formats and through any media channels. Youalso hereby grant each user of the Service a non-exclusive license to access your Content

through the Service, and to use, reproduce, distribute, display and perform such Contentas permitted through the functionality of the Service and under these Terms of Service.

The above licenses granted by you in video Content you submit to the Service terminatewithin a commercially reasonable time after you remove or delete your videos from the

Service. You understand and agree, however, that YouTube may retain, but not display,distribute, or perform, server copies of your videos that have been removed or deleted.


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The above licenses granted by you in user comments you submit are perpetual and

irrevocable.

Most of us who make a living from producing, selling or distributing video or digitalmedia find these terms onerous at best and these terms often clearly violate written

agreements we have with other parties. Further, YouTube and their competitors makemoney from selling advertising on their site while using often illegally uploaded orcopyrighted material and content. In most cases the producers of content on YouTubereceive no compensation.

From an education outreach point of view YouTube, Vimeo, Veoh, etc. are a dead end.The main point of education outreach is to encourage web viewers to visit the designatededucation, project or institutional site to learn and discover more about the topic. Visit aYouTube web page and you will notice there are no links to external sites, only links tomore YouTube content hence an intellectual dead end. Web surfers discover no moreabout the topic but do have the opportunity to see the latest Lady Gaga video pirated from

a cell phone. Educational video or multi-media should be hosted on their respective sitesso that users can actually delve into the topic.

While it is impossible to stop the misuse of footage or intellectual property on the web itis possible to mitigate potential problems and make informed choices about where andhow the important work of the Queen Annes Revenge Shipwreck Project is broadcast.

So what are some strategies as related to video and multi-media that can be used tomitigate some of the problems associated with hosting to external sites and the theft ofintellectual property.

1. Host the video on your institutional site. Put only a small teaser video (appropriatelywatermarked see QARStill.jpg below) on YouTube with your web site URL clearlymarked. The project and copyright holder are clearly noted and a URL for furtherexploration is embedded in the video.


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QARStill.jpg

2. Limit the size of the video window. 360X203 pixels in widescreen and 320X240 pixelsin 4:3 viewing mode are good sizes which limit the ability to blow up or up res thefootage but still provide decent viewing.

3. Do not use Best or Highest Quality compression. This still allows for decent qualityviewing but impedes manipulation.

4. Burn in the URL (website) in the lower third of the frame at least 50 lines above the

bottom. This also helps prevent blowing up the video to lose the burned in information.

5. Be sure to embed copyright, creator, URL and keywords information in the final file.

While none of these strategies is 100% effective they do help minimize theft and misuseof digital media. There use also helps guarantee that web users and viewers have areference for further inquiry via the embedded URL. For rights holders and licensors it isan almost impossible battle to protect and maintain value of digital media once its on theworld wide web. But it is exactly the protection of these rights that makes the 12 yeararchive of the QAR project possible.

Again my apologies for the length of this letter but I have only just touched on some ofthe issues involved in digital rights management in this age.


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Documents

NCDCR Intellectual Property Letter 2010