Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing

Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott, had apparently brought on a publicist who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a "fair usage fee." As we pointed out, this was idiotic -- and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that "copyright experts agreed" that they had a point. That's flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson's interpretation of copyright law is laughably wrong.

Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law there is such a thing as a "fair usage fee" and rather insisted that he's obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He's also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:

“Any footage has to be owned by somebody. It’s not like it’s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it’s the same in this case.”

He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.

“Fair use doesn’t really apply to images,” he said. “There’s a fair use argument on the video, but there’s a very clear copyright on the use of the photographs.”

The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means "in the public domain." It does not. Things in the public domain don't need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That's why there is no such thing as a "fair usage fee." Second, the idea that "fair use doesn't really apply to images" is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn't even remotely arguable. Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.

And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:

The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.

Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. The Guardian's reporter, Jon Swaine, apparently called up Markson's employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.

Asked why they believed the footage needed to be licenced, Nissen Gray said: “We have discussed with our copyright attorneys and ‘fair use’ doesn’t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.”

I'm curious who these "copyright attorneys" are, because they're not just wrong, they're so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn't seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he's wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.

Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to "cash in." However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what's being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers and they quite likely will hit back seeking a declaratory judgment for non-infringement.

* In further conversations, Markson also mocked me for caring about this, talking about how he's "closing deals daily!" as if he's proud of the fact that he's directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.

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