What Should You Do If Quibi (or Anybody) Steals Your Footage?

I woke up one morning to see that the impossible had happened. A major corporation stole my student film.

I've had countless students over the years ask, "How can I protect myself if a major studio wants to steal my student film?" I've generally answered with something like. "That's so unlikely to happen, I wouldn't even worry about it, but you are protected by copyright, so just register your projects and you'll be okay." 

While I still do think it's not something most people should worry about (if your student film really has an amazing mega-blockbuster idea in it, it's cheaper for the studios to hire you to make it, or just pay you off for the idea, than risk litigation), big companies stealing with impunity from students apparently does happen. Hilariously, it just happened to me.

A multi-billion-dollar media company just stole my student film.

Quibi was, at least on paper, for a few minutes, a multi-billion-dollar media company. And they just used my student film without permission.

Not the idea (that would be much more complicated to prove), literally the footage from a project I made while a student. 

While in film school, I got together with a few friends and made a spec commercial for American Apparel. It wasn't good. I learned a lot from it, and it fed my future work, but it wasn't anything I wanted to show the world or have ever put on my reel. It was a learning experience.

It's kind of bad, actually, awkward and cheesy and the wrong tone for the brand.

With all these A-listers, why use student footage?

It wasn't for a school assignment and didn't use school equipment, and I paid for the 35mm film stock and processing myself, so it's wholly my property.

But it's a "student film" because I was a film student at the time, and also because it's so clearly amateur. I can't stress enough that it's just not great work.

I put it on YouTube in 2007 (which was a much different place at the time), where it somehow got 55,000 views before I made it private. Then I forgot about it for 13 years while I went on to make things I'm actually proud of. It's been private since at least 2008.

Then one morning a few weeks ago, I was reading the New York Times and my video started playing in the ad window. For a moment I thought it was some sort of weird mistake, like my computer was accidentally playing my personal YouTube channel in the NYT ad window. Then, after five seconds, it cut away to other footage and I realized it was a trailer for a new documentary on Quibi, from Vice. Which used my footage for the opening five seconds. Without permission.

They literally did the thing I always tell people not to worry about happening. Then it happened. To me.

Step 1: Call a lawyer

First things first, whenever something like this happens, call your lawyer. Specifically an entertainment lawyer familiar with fair use and media law.

Yes, you might know a lawyer that specializes in maritime law, but you want someone with some knowledge of how the film industry works and who knows the relevant law here. I called my lawyer, and we decided on a plan of action of simultaneously filing copyright takedown notices with YouTube, and also issuing a cease and desist with Quibi and Vice legal affairs.

In that cease and desist letter we did offer a financial figure that would settle the claim and allow them to keep using the footage. While the law is written to imply that up to $150,000 is recuperable, in discussion with my lawyer he indicated that that figure is rare and reserved for major infringements, and that we should ask for a more reasonable number. We found legal affairs contacts for Quibi and Vice on their websites (if you can't find it on a company website, LinkedIn is a great resource for finding the legal affairs people for companies, as they all have LinkedIn profiles).

Within a day of sending in our cease and desist, Quibi responded, not with a financial counter-offer, but an agreement to take down the offending work.

If Quibi hadn't just gone out of business, it's possible they might have paid me to keep using the footage, but since the company is winding down, it's likely easier for them to just take down the trailer. So far I've only found my footage in the trailer; the one episode that is online on YouTube doesn't seem to have my footage in it, and the Quibi app isn't working any longer, so I can't see the other episodes. If and when the show finds a new home, you can be confident I'll watch it to see if my footage appears.

Quibi

File a copyright takedown

Luckily for me, the primary platform for this content was YouTube, which makes copyright takedowns relatively easy. If your footage is in the middle of the film on Quibi, for instance, it would be harder to do something like this, but since Quibi doesn't have an audience, they need to promote their projects on YouTube. Thus they placed the trailer for their film on YouTube, and also on prominent trailer channels on YouTube that have their own audiences.

The official link for their trailer is now a private video. That's because I filed a copyright takedown notice, and since they used my footage without permission, YouTube took down their content. I filed it against everywhere the trailer appeared online (the Quibi channel and other YouTube channels with bigger audiences where Quibi had placed the trailer), and it was taken down by YouTube.

One interesting thing I learned is how quickly and seriously the other channels take this. Within hours of the takedowns, I was contacted by channel owners who wanted to figure out how to work together to remove the takedown notice, since copyright takedown notices can adversely affect a channel. Channel owners were universally friendly and helpful, and I retracted the takedown notices and they took down the offending video.

The other thing I learned was that, not matter how obvious the infringement was (and it was clearly the same footage, and I had uploaded it to my personal channel in 2007, and it was from that account I was filing the takedown), YouTube always denied me on the first round saying they thought it was covered under "fair use." I always had to write out a longer appeal explaining my case. I had my lawyer craft the appropriate language. Then YouTube would approve it.

I suspect that YouTube gets so many takedown notices it simply denies them all without review first, then actually considers them and approves them on review.

Jeffrey Katzenberg
Will Jeffrey Katzenberg never forgive me for this?

Will I never work with Quibi or Vice again?

One common worry filmmakers have when dealing with media companies is if they are ruining a possible future collaboration. This comes up over and over again: "What if I someday want to pitch a show to Quibi? Will they remember this and hold it against me?"

Maybe, but it's unlikely. First off, as we have well covered, Quibi is dead. Though of course there is still Vice, and while I've never worked with them in the past, who knows what the future holds. I could well be pitching a show to Vice in a few years. But I don't think this incident will hurt me in that pitch.

The reason it's unlikely is that it is shockingly common for people to keep working with companies while suing them. A writer friend of mine is currently developing two television shows with a network while his lawyers are simultaneously fighting with their lawyers over payments from a previous project. It's just how the industry works.

Your lawyers fight with their lawyers so that you can keep working with them. That's the whole point of lawyers.

Remember, this fight is between your lawyer and their legal affairs department. There is a very good chance that legal affairs has a given budget for dealing with this stuff every year, and no one else at the company will even hear about it.

I even had one negotiator tell me once, "Look, I can spend X dollars without getting approval from anyone outside my department, so just take that and it won't have to drag on for months with me getting approvals." Was that a negotiating tactic to get me to take less than I deserved? Maybe, though in the moment I believed them, took the offer of X, and everything proceeded quickly, and we were all able to move on.

If they are going to be annoyed at someone, it's going to be the person on their side who messed up and left them open to the cease and desist. In this case, whoever the producer is who failed to get all the necessary rights to footage before playing it all over the internet.

If I someday pitch Jeffrey Katzenberg a project, will he remember that I once filed a copyright cease and desist against Quibi? Almost definitely not. He'll likely have blocked all memory of Quibi from his brain. Even if his assistant Googles me before the meeting and finds this article, they likely won't even show it to Mr. Katzenberg in order to avoid bringing up Quibi and the dark mood it leaves their boss in whenever the word comes up.

You have to protect your work, and odds are that doing so isn't going to make you enemies. If it does, they aren't the kind of people you want to work with anyway.

How did this happen?

How did this happen? I have no idea. I haven't the slightest clue how they got the footage.

It didn't say "American Apparel" in the youtube description, and it only had 55,000 views way, way back in 2007. I sent an email in March 2007 with a link to the YouTube video to "video@americanapparel.net," but there was no reply. Maybe they used something like keepvid to download every video sent them and saved it all on a server for the last 13 years, and someone editing the doc watched it all? Who knows.

The bigger issue is not how they got it, but how it made it to the end of the process without properly getting licensed. Every documentary of this size and type should have someone on the crew called an archival producer. This person's job is to track every single shot going into the project and make sure rights are properly cleared for it. They usually use a Filemaker Pro database, and turning that database in is a part of the delivery requirements for major networks like Nat Geo and PBS. Specifically to avoid this sort of thing.

Archival producers are amazingly thorough. They usually have a set budget and are constantly juggling what can be achieved within that budget. Conversations go on throughout post about which shots are worth keeping, which aren't, what you might replace a certain shot with. Rough edits regularly include footage not fully licensed, of course, and the archival producer is researching full time how much it will all cost and getting ready for finishing.

This footage making it into the project is a failure on not just the production companies part (Vice), but also Quibi. It seems likely Quibi wasn't requiring the same level of documentation for licensing that traditional networks would. And that trickled down, likely to there being a smaller archival producer team, if they even had one at all. So footage made it in that they didn't have the rights to.

There is some small possibility that this just made it into the trailer and not the full edit, and that the mistake happened at the trailer house. Generally trailers and promo for docs are pretty good at only using footage from the final project to avoid these issues. But maybe Quibi or Vice used a trailer house or team that had mostly worked in narrative and thus didn't know how docs tend to work. It's also possible they did several passes at the trailer house without the "sizzle" they were looking for so they went hunting and found this footage. Either way, professional custom would still be to license it.

File for Copyright

The biggest takeaway is to file for copyright protection for everything you make. It's easy to do for videos online. There is a website for submitting.

You have to protect your work. Even, apparently, your student work that you thought would never go anywhere.      

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1 Comment

I would be worried only if that video was used for a narrative film, or a music video, or a documentary of really bad taste (e.g. some crazy conspiracy theory doc). But not for a normal documentary. While technically you are supposed to clear all footage and music for documentaries too, let's not forget that documentaries also fall under the Fair Use as journalistic works. So honestly, if that documentary was providing a service to society, I would be more than happy to let my video be part of it, even without a license.

While the letter of the law protects your side these days, the spirit of the law was originally about providing service to society. So when it comes to footage, there's no better way to do that but with a documentary.

November 29, 2020 at 11:23PM, Edited November 29, 11:23PM

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Eugenia Loli
Filmmaker, illustrator, collage artist
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