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@gumpus, I too think it would be of instructive and historical interest to have Pat Moore's videotape available on YouTube.
However, there are copyright considerations. I can't give client legal advice on this forum, but I can review some general U.S. copyright law principles and some probable facts. It's hard to make this brief.
Copyright protection attaches automatically upon the creation of a work. No copyright notice has to be put in the work, but doing so makes infringement litigation easier to prove. Copyrights also don't have to be registered in the U.S. copyright office, but if they are registered, that makes litigation in federal court possible and, if the registration is made upon first publication, statutory (automatic) damages are likely available even if no actual damages are provable.
A copyright lasts during the life of the creator plus 70 years. If the creator dies, the copyright will be owned by his legal heirs for the 70-year period. Legal heirs are usually a spouse, children or other lineal or collateral relatives.
As a theoretical matter, if Pat's video were put on YouTube, some unknown heir of his could file an infringement claim. A claimant can seek either
actual damages or
statutory damages. Actual damages means the claimant must prove exactly how much profit he lost from videotape sales because of the YouTube upload or how much profit the uploader gained from YouTube. If the claimant elects statutory damages, he doesn't have to prove any actual profits lost by him or any profits gained by the infringer, but can automatically be awarded a discretionary amount over range of about $750-$30,000. However, if the work was not registered within three months of first publication (1999 for Pat's video), no statutory damages are available in a federal court suit—only provable actual damages.
As a practical matter, the legal risk of infringement and the amount of possible damages would depend on certain facts. Is Pat alive? If he is dead, does he have legal heirs? Did he register his copyright with the Copyright Office? Is the videotape still available for public sale, making some heir of Pat current profits? If the video were put on YouTube, would the YouTuber be making any profit off of it?
In answer to these practical questions, as far as I know or can tell, most people who knew or knew of Pat assume he has died. No one I know is aware of any living family members or heirs of his. As far as I can tell, the videotape has not been available for new sales by Pat or anyone for many years; hence, I doubt any legal heir could prove lost profit actual damages if the video were uploaded to YouTube. Similarly, If the video were uploaded, the YouTuber presumably wouldn't be making any profit gain off of it; hence, there would be no actual damages for profit gained by the infringer.
As to whether Pat ever registered his copyright, I doubt it. I can't find any evidence of the videotape's registration via various search terms in the Copyright Office's
Public Records System database. However, searching that system will not necessarily reveal everything that a paid search by the Copyright Office does. No infringement suit can be brought in federal court until such a registration has been processed, which takes many months, and the heir would have to hire lawyers to bring a federal suit. If my presumed facts are correct, the heir wouldn't be able to prove any actual damages, but statutory damages may be available if, and only if, Pat had registered the videotape in 1999.
Based on the hypothesized facts, a risk summary for uploading the video could be as follows:
- If Pat never registered the videotape in 1999, and if it is no longer for sale, and if the YouTuber makes no money off the uploaded video, there would be no provable damages and no available statutory damages even if some unknown heir of Pat exists. No one would bring such a fruitless lawsuit.
- If Pat did register the videotape in 1999 (contrary to preliminary searches) and all other facts presumed are the same, no actual damages would exist for the hypothesized claimant, but he or she could seek some sort of statutory damages. These statutory damages would probably be awarded at the low end of the range, but the claimant would have to bear the costs of a lawyer, court fees and probably years of litigation delays. Would anyone bother doing that? My suspicion and intuition is that such legitimate claimants usually just contact YouTube, asking them to take down the video.
(There are other legal technicalities I didn't mention because they wouldn't really change my summary.)
Not that it affects the legal analysis, but as one who communicated frequently with Pat before he presumably passed, I feel certain that he would have wanted his life's work and legacy to be available for posterity on YouTube.
. I can laugh about it today….
