Can you copyright an open meeting?
Rebecca Aguilar says you can. She’s a freelance writer who’s president of the Society of Professional Journalists, the nation’s shrinking-but-still-largest journalism organization. Aguilar recently ordered YouTube and Vimeo to take down this video I made – of an SPJ meeting…
So I hired an attorney, who calls that argument “comical.”
I didn’t even record the meeting myself. SPJ did. In fact, the entire meeting is still posted on SPJ’s channel. But Aguilar instructed SPJ’s attorney to concoct this argument: My supercut constitutes copyright infringement.
All I did was extract six minutes from a wild 90-minute video of an SPJ board meeting that gets crazier by the second. If SPJ’s logic holds, my attorney says this could have a “chilling effect” on all journalists.
Let’s break down the ironies…
SPJ doesn’t understand journalism
My attorney is Justin Hemlepp, who has successfully sued a public university down here in Florida for violating the state’s public records law. Now he’s writing the weirdest letter of his career: schooling SPJ on how journalism works.
“While it is uncomfortable for me to have to explain fair use under U.S. copyright law to the nation’s preeminent journalism organization, here we are,” Hemlepp wrote to Aguilar, copying SPJ’s executive director and attorney.
Just because YouTube and now Vimeo have taken down my video doesn’t mean there’s anything wrong with it. That’s just their policy: If anyone complains about your video, you have to prove it’s just fine. “Guilty till proven innocent” is antithetical to U.S. jurisprudence, but it’s standard for online platforms that dread bad PR and a Congress that’s bipartisan on only one issue: Big Tech is evil.
So Hemlepp is helping me appeal through YouTube’s clunky process. (Vimeo’s is much easier, akin to retrieving the Amazon password you forgot. Meanwhile, YouTube’s is like trying to get your deposit back from a gym that just closed.)
Hemlepp wrote to SPJ: “YouTube does not and cannot dictate copyright law. Well-established copyright law on fair use is fairly easy to understand.” Then Hemlepp explained those four factors, which are familiar to journalists but not, apparently, SPJ:
- Purpose and character. “Is the work of a commercial nature or for nonprofit educational purposes? Here, the answer is clear. The video was cut and published in a manner to inform the public of SPJ’s internal workings and was not supported by advertising or otherwise monetized in any way.”
- Nature of the copyrighted work. “The board of directors’ video did not constitute creative expression. It was a routine meeting that SPJ itself posted online for the world to see.”
- The amount of the work used. “Mr. Koretzky’s video was a roughly five-minute, selectively edited cut of an hour-and-a-half long meeting. Some courts even have held that use of the entire work can constitute fair use.”
- Effect of use of the work in the market. “SPJ could not and has not in good faith argued that its mundane, routine posting of a board meeting has any market value whatsoever.”
That’s so basic, college students learn it in Mass Comm Law class. So I didn’t really need to hire Hemlepp, I could’ve recruited a grad student. But I stuck with Hemlepp for the irony: SPJ has hired him before.
In 2017, I paid Hemlepp with SPJ money to defend the editor of the student newspaper I advise. Student Government officials had banned that editor from his elected position, and Hemlepp convinced administrators to step in before we’d all end up in court.
Back then, SPJ leaders lauded Hemlepp’s efforts and his expertise. Today, not so much. Which leads to another irony…
SPJ hurts those it purports to defend
SPJ attorney Mark Bailen replied in a five-page letter. The key part:
His video alters SPJ’s video and undermines SPJ’s purpose behind creating its videos. It directly interferes with SPJ’s right to exploit its copyrighted content.
Ironically, the “purpose behind” SPJ’s videos is to inform its members and the public. I know this because I served for a decade on SPJ’s board. I remember voting to do this. Yet SPJ is now insisting it owns the copyright to its meeting videos – and can keep others from excerpting them for any purpose, including news.
“That’s an interesting argument,” Hemlepp muses. “Let’s say you did a supercut of a city council meeting and posted it online. If the city ordered you to take it down, SPJ would normally be the ones to get your back. They even have a Legal Defense Fund for cases like that. Yet they’re not holding themselves to the same high standard.”
Now before you say it: Yes, SPJ is a trade organization, not a government agency. But SPJ has a long history of operating as if it is. The reason is simple: How hypocritical would it look for a journalism organization to advocate for transparency while denying it for themselves?
SPJ acts like its enemies
In his letter, SPJ’s attorney kept referring to “the distorted video of the meeting.” One of his arguments for taking it down: It “appears designed to publicly denigrate and arguably ridicule the organization.”
How many times have journalists heard that same excuse from hostile and corrupt sources? Aguilar herself has told SPJers that my video isn’t “newsworthy.” Yet the nation’s foremost journalism publication disagrees.
Three years ago, the Columbia Journalism Review covered my release of the video and the corresponding blog post. As Hemlepp wrote to SPJ, “The Columbia Journalism Review embedded Mr. Koretzky’s taken-down video as well. As you are undoubtedly aware, CJR is the gold standard of media criticism. I doubt it would engage in copyright infringement.”
Under the headline, “A disastrous conference call for SPJ, followed by a call for impeachment,” CJR described the video thusly:
What should have been a fairly dry, procedural discussion instead devolved into the Zoom meeting equivalent of a reality-show fight, with shouting, veiled personal attacks, and bickering over board bylaws. It was enough to prompt one board member to launch a campaign to impeach SPJ’s president, J. Alex Tarquinio.
I was that board member calling for the president’s impeachment. Unfortunately, that president is close friends with Aguilar. Which leads to yet another irony…
Doing nothing would’ve accomplished more
When Aguilar ordered YouTube to take down my video, it had zero views over the past two years. So I moved it to Vimeo, and now that she’s done the same there, it’s up on Rumble. As my attorney told SPJ, “My client intends to continue republishing it on other platforms should SPJ continue its ill-advised attempts to silence his criticisms online.”
In other words, I can do this all day.
Later today, I’ll tell CJR that the video they linked to no longer works, and I’ll share this post as an explanation. Even if CJR does nothing, Aguilar has only succeeded in getting more people to see the video she wants to scrub from the Internet. Now that includes you.