An Unwelcome 15 Minutes: What Can You Do?

June 2, 2010Article
Law Law Land Blog

In 1968, Andy Warhol exhibited his first international retrospective at the Moderna Museet gallery in Stockholm.  The exhibition catalogue contained the well-known phrase:  “In the future everybody will be world famous for fifteen minutes.”  Warhol repeated that phrase in 1979, stating that his “prediction from the sixties finally came true.”  Now that we live in a world in which a video clip can go viral within hours, Warhol’s “prediction” seems more like an understatement — though if Warhol could see the “Numa Numa” guy for himself, he might not actually take much pride in his predictive powers.

Unfortunately — or, for those who view the Internet as an all-you-can-eat buffet to their insatiable appetite for attention, fortunately — more and more people are finding themselves thrust into surprising (and often unwanted) Internet stardom.  So, what can you do if you become an unwilling Internet meme? (That is, besides closing your eyes and waiting for your 15 minutes to expire.)  Well, it depends.

The first factor to consider is who created the video clip.  Generally, the person who created the video clip owns the copyright in the clip and can prevent others from disseminating it on the Internet.  Likewise, even if the copyright owner voluntarily posted it on the Internet in the first instance, he or she can prevent others from reproducing and reposting it.  The Digital Millennium Copyright Act (DMCA) gives the copyright owner a quick and easy way to require websites who have posted an infringing video clip to take it down.  The copyright owner can send each website hosting the video clip a proper take-down notice identifying the infringing links.  Each website should have instructions for the specific contents of the notice and where to send it, typically to be found in the “Terms of Use” or “Copyright” links on their homepage (and these instructions need to be followed meticulously).  Keep in mind, however, that DMCA take-down notices can sometimes create additional unwanted negative publicity.

But what if you are not the copyright owner of the video clip, or the copyright owner is not a cooperative friend or relative?  The next factor to consider is whether you consented to the video.  If the video was taken with your consent, and the creator chooses to post the video on the Internet at your expense, your probably won’t have much luck getting the video removed from hosting websites.  Even if you didn’t consent to the taking of the video, but the video was taken in a public place (or in places with paid admissions, such as a sporting event), at best you’re facing an uphill climb.  The DMCA take-down provisions are designed to protect against copyright infringement claims, and do not address other concerns such as invasion of privacy or right of publicity.  Without the ability to enforce a valid copyright, it will be very difficult to convince hosting websites to remove the unwanted videos.

While there are always exceptions, to date, after-the-fact lawsuits to recover damages generally have been unsuccessful — think Epic Boobs Girl…no, not that one from your gym, the Internet phenomenon with the failed lawsuit, silly — and are unlikely to curb the spread of the video clip in any event.  Take, for example, one of the most well-known Internet memes of all time, Star Wars Kid.  Several classmates discovered video footage that 15-year old Ghyslain Raza had taken of himself swinging a golf club like a dual lightsaber.  The classmates posted it to the Internet, making Star Wars Kid instantly Internet famous.  Raza later sued the families of the three students.  Although it was reported that Raza reached a settlement with the families, by the end of 2006, the video was estimated to have been viewed 900 million times. 

The moral of the story?  First and foremost, be very careful about how, when and for whom you appear on camera, and don’t post anything on the Internet that you don’t want the world to see.  Failing that, as Gawker notes, you could follow in the proud footsteps of Chris Crocker (R-rated language warning) and David After Dentist’s dad and profit.  And of course, you can always simply sit back, embrace your new found cyber-celebrity status and (in honor of the infamous Approval Guy) give it a classic thumbs up.  After all, it probably won’t last long.