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socrateaser
socrateaser, Attorney
Category: Business Law
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Experience:  Retired (mostly)
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This question is specifically for "socrateaser". For some reason,

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This question is specifically for "socrateaser". For some reason, even though I click on "Ask this expert" it seems to assign a different expert, which seems like a bug to me. No offense to any other expert, but I am specifically requesting that this be assigned to "socrateaser".

Suppose I take a trip on Amtrak and make an amateur documentary/review video of that trip, with reviews of the food and accommodations, and post that video on YouTube. As I am a YouTube "partner", potentially sharing in a portion of the ad revenue that YouTube earns from the video, this could be considered commercial use.

Aside from liability for any passengers or employees on the train who might appear in the video, this question has to do with recording on Amtrak property without having obtained any permission from Amtrak. I did not obtain any permission from Amtrak to make this video during my trip, although I did not hide that I was making it either, and no conductor or other employee who saw me doing so told me to stop.

Suppose for some reason Amtrak decided to sue me regarding this video, as it was made on their property without their permission. I presume, first of all, that they would be likely to be successful, since I didn't have permission? But my question primarily has to do with the amount that they would likely be successful in getting, in other words, what am I exposing myself to by doing this? I assume they could get the court costs, and I would have the cost of my own lawyer. But, as to the actual amount, would they likely be able to successfully sue for more than the tiny amount that I actually earned from YouTube revenue sharing? And where, in what court, would it take place?

Secondarily, but related. Suppose I am not a YouTube "partner", but just an amateur posting that documentary/review on YouTube for free as a hobby, with no revenue sharing, and no direct financial gain or participation on my part. Although I'm not making commercial use of that video (I don't think), YouTube still is, since they will get ad revenue, as they do on any video. Therefore, could I get into trouble for "facilitating" or "enabling" or "collaborating with" YouTube to make commercial use of that video I shot on Amrak? Seems like a stretch to me, but I wonder.
Hello again.

Thanks for your comment at the beginning of the question. I have requested an explanation from the website administrators.

Suppose I take a trip on Amtrak and make an amateur documentary/review video of that trip, with reviews of the food and accommodations, and post that video on YouTube. As I am a YouTube "partner", potentially sharing in a portion of the ad revenue that YouTube earns from the video, this could be considered commercial use.

Aside from liability for any passengers or employees on the train who might appear in the video, this question has to do with recording on Amtrak property without having obtained any permission from Amtrak. I did not obtain any permission from Amtrak to make this video during my trip, although I did not hide that I was making it either, and no conductor or other employee who saw me doing so told me to stop.

A: Amtrak the trade name of the National Railroad Passenger Corporation, which is a federal agency. You're in a public place. So, there is no liability -- except potentially under the Patriot Act. There could be an issue of your creating a risk to the public by posting a video which could be exploited by a terrorist organization in planning an attack on a public carrier. So, before you choose this "route" (pun intended), I would contact Amtrack and discuss, because there is a risk which might ordinarily not exist in a public place.

Suppose for some reason Amtrak decided to sue me regarding this video, as it was made on their property without their permission. I presume, first of all, that they would be likely to be successful, since I didn't have permission?

A: You won't be sued -- you'll be arrested. Big difference. Your remaining questions on this issue are rendered meaningless by the gravity of the potential claim. Amtrack has no claim against you -- Department of Homeland Security has the claim, and that's a whole different issue from intellectual property. We're talking about national security, now.

Secondarily, but related. Suppose I am not a YouTube "partner", but just an amateur posting that documentary/review on YouTube for free as a hobby, with no revenue sharing, and no direct financial gain or participation on my part. Although I'm not making commercial use of that video (I don't think), YouTube still is, since they will get ad revenue, as they do on any video. Therefore, could I get into trouble for "facilitating" or "enabling" or "collaborating with" YouTube to make commercial use of that video I shot on Amrak? Seems like a stretch to me, but I wonder.

A: I suppose someone could make that claim. But, if this were really a risk, YouTube would be out of business completely. We're getting deep into 1st Amendment free expression territory here. Youtube would argue that it is charging ad revenue to maintain a forum for public expression. They will further argue that this is fair use, given the public importance of their service. Youtube will win, becaue the U.S. Supreme Court is not so much a court as it is a "superlegislature" of nine, who know that if they seriously piss off the public, that the court could be ignored by everyone. Youtube is incredibly popular -- it's not going anywhere.

Whereas you, as an individual can quickly be disposed of by Youtube if it believes you are a problem. And, you would have to fight like hell to get the Supreme Court to hear your complaint, assuming you had an extra $500,000 for legal expenses lying around.

Hope this helps.
Customer: replied 3 years ago.

Wow, I hadn't considered being sued for helping terrorists! However, there are literally thousands upon thousands of YouTube videos of Amtrak, so I guess I wouldn't be alone. I don't think my video would be exposing anything unique that the thousands of others haven't already.


 


I guess this would apply to any public area, such as buses, airports, parks, etc. This would seem to prevent you from making a video in virtually any public place where people might gather or pass through.


 


If I can be permitted to redirect, let's take Amtrak out of the question, and suppose I recorded without permission video on, or video of, someone's property (building, house, business). Per my original question, I'm interested in knowing the extent of my exposure, basically is the exposure more than any tiny financial gain I actually got by doing so? I guess I'm asking if there are "punitive" awards coming into play, such that the exposure risk is significantly beyond any tiny financial gain that I may have received from my transgression.


 


P.S. with regards XXXXX XXXXX comment at the start, I have also sent an email to the administrators. What actually happened is that after I directed my question to you, a generic screen came up asking me to set the price and showing some other random expert, saying that expert was ready to answer. However, once I chose to go ahead and pay, the question apparently did indeed go to you as I requested. Apparently, there was just a very confusing intermediate screen in-between.

I guess this would apply to any public area, such as buses, airports, parks, etc. This would seem to prevent you from making a video in virtually any public place where people might gather or pass through.

A: I try to grab every possible legal issue -- not just the obvious. Sometimes I go too far. In this case, the failure to go to far, could land someone in Gitmo with no way out. That's what's wrong with the Patriot Act. It effectively negates the entire U.S. Constitution in the name of national security. There is no doubt that the Constitution is not a suicide pact. But, we must remain vigilant, lest we lose all of our rights and become the very thing that we seek to avoid: a totalitarian dictatorship. Anyway, back to reality.

If I can be permitted to redirect, let's take Amtrak out of the question, and suppose I recorded without permission video on, or video of, someone's property (building, house, business). Per my original question, I'm interested in knowing the extent of my exposure, basically is the exposure more than any tiny financial gain I actually got by doing so? I guess I'm asking if there are "punitive" awards coming into play, such that the exposure risk is significantly beyond any tiny financial gain that I may have received from my transgression.


A: Buildings are not the subject of commercial misappropriation -- only people. If someone obtains a commercial advantage without consent, then the person who's likeness is misappropriated has a claim. That claim would go to Youtube, and Youtube would sue you for contribution/indemnity -- and it would win.

 

Ordinarily, there is a "governor" against such lawsuits, because attorney's fees are not granted a prevailing party. So, if your activity took place in NY, no one would ever think of suing, because the damages are so small. But, in California, Civil Code 3344 allows attorneys fees. So if a plaintiff were to sue, "California is the place you wanna be" (apologies to the Beverly Hillbillies), because if you win, you get your attorney's fees paid. Still the amount of damages are likely to be pretty small for the average person. Only if someone important happens to get caught in a frame do things get dicey.

 

1. If you video a trademark, like a Starbucks, and you show it prominently -- Starbucks might sue Youtube. However, more often than not, most businesses want their trademarks seen in videos, as long as it in a positive light. So, if your shooting in front of a Starbucks and your subject matter happens to be a Dunkin Donuts coffee, promo, then watch out. Or, if there just happens to be a dog relieving itself on the fire hydrant in front of the Starbucks, then unless the goal of the video is to comment on Starbucks as a product (fair use doctrine), then your inadvertant dilution (pun intended) of the trademark could get you into trouble.

 

2. There's no way to cover every possbility. "When in doubt, blur it out." That's the rule. If you're making money, and you don't blur it out, then get a release/license from your subjects and any manufacturer whose product is featured more than in passing.

 

P.S. with regards to the comment at the start, I have also sent an email to the administrators. What actually happened is that after I directed my question to you, a generic screen came up asking me to set the price and showing some other random expert, saying that expert was ready to answer. However, once I chose to go ahead and pay, the question apparently did indeed go to you as I requested. Apparently, there was just a very confusing intermediate screen in-between.

A: Thanks for your clarification. The website is always trying new things. I don't frankly have a clue how the system works.

Hope this helps.
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Customer: replied 3 years ago.

Thanks for your answers. I've learned to be more careful about what I monetize on YouTube, particularly regarding public scenes with identifiable people in them by coincidence. And I guess I'll be using the blur filter more than I have been!

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