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Theme parks and the legality of publishing visitors' video: Part two

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Published: March 10, 2010 at 9:22 AM

I wanted to draw your attention to a story yesterday in the Orlando Sentinel about an attempt by SeaWorld and the family of Dawn Brancheau to prevent video of the orca attack which claimed her life last month from being shown to the public.

The Orange County Sheriff's Department has surveillance video of the incident, and might have video from tourists on the scene, too. Normally, under Florida law, material that sheriff's deputies collect in the course of an investigation becomes public record after the investigation is complete. And the sheriff's office already has gotten multiple requests for the video.

But, remember, SeaWorld has a legal ace up its sleeve here. Remember our discussion from earlier this year about the legality of posting theme park photos and videos online? Despite the fact that theme parks technically prohibit publication of images photographed or recorded within their parks, I wrote then that parks "absolutely love viral promotion from their guests." The only time that parks would take legal action to enforce their copyright and prevent an in-park photo or video from being publishing would be if it "portrays the park in a negative light."

You better believe that SeaWorld's going to exercise that here. The sheriff's office might be legally obligated to release the video after it complete its investigation. But SeaWorld's copyright claim on that video should be enough to prevent anyone who obtains that video from republishing it - online or elsewhere.

There is a "fair use" exemption to copyright law that might allow news organizations or even individual bloggers to publish a screen grab, or maybe even a very short excerpt from the video. I wouldn't do that, though, and I hope that no other news organization covering the theme park industry would, either. Let's allow Dawn's memory, family and fellow trainers some dignity.

Readers' Opinions

From Terry O'Neal on March 10, 2010 at 9:57 AM
On behalf of the people who watch things like that but regret seeing them afterwards, I hope it doesn't get out. Throughout the Olympics, all I could picture was the Georgian hitting that post, wishing I never watched it. This would be the same type of thing.
From Mitchell Botwin on March 10, 2010 at 10:30 AM
There is no value to anyone in the releasing of the video. The need to feed peoples vicarious desire to watch the destruction of people and places should not be honored. Respect the wishes of the family and even if the video is published, do not view it.
From Brandon Mendoza on March 10, 2010 at 10:53 AM
I think there's something wrong with society when people actually want to see video of something tragic like the Sea World incident. Too many people are desensitized to graphic events. Seeing a video of something happening is different than experiencing something happening in front of you. Usually, a person chooses to view a video. There's no pause or off button for an incedent occuring in real life.

I too can see Sea World removing any of the videos posted online. I don't blame them. No one needs to see that... I agree that it's just like the Georgian Luger, or any other fatal accident. It's something you can't unsee.

From Anthony Murphy on March 10, 2010 at 12:10 PM
Yeah, maybe I am reading this wrong, but I do not want to see this video and it should be destroyed. How dare somebody wants to see a video of the death of a person. What is wrong with everybody?

This is a little different than posting a video of the Haunted Mansion or the Tower of Terror. This is the Death of a human being!

From Joshua Counsil on March 10, 2010 at 12:30 PM
It's a lose-lose situation.

If the video is released, then the family and friends of the girl are appalled, and the general public gets to see it in all its horridness.

On the other hand, if the video is not released, it's another loss of public domain to the man (yeah, I said it) on behalf of preserving an image. I'm sure SeaWorld has some good intent on behalf of the family, but their main goal is protecting themselves.

From Robert Niles on March 10, 2010 at 1:23 PM
To clarify, and echoing Joshua's point: I do believe that all sheriff's investigation material (even this video) should be available for public inspection. But that doesn't mean that all that material needs to be republished on the Internet - and responsible publishers should play no part in doing that, either.
From TH Creative on March 10, 2010 at 5:15 PM
Mr. Niles Writes: You better believe that SeaWorld's going to exercise that (copyright) here. The sheriff's office might be legally obligated to release the video after it complete its investigation. But SeaWorld's copyright claim on that video should be enough to prevent anyone who obtains that video from republishing it - online or elsewhere.

I respond: I disagree. By relinquishing the video to the police, Sea World acknowledged that it was aware that the video would become a matter of an investigation and thus become PUBLIC record. Certainly Sea World had the opportunity to refuse to hand the tapes to the police (under the contention of loss of copyright). The cops could then take action getting a court order (which Sea World lawyers could have challenged on the copyright grounds).

As for suppressing its release, I could not disagree more. Not because I have any desire to witness the tragedy, but rather because the process should defer to transparency. How can the public be certain that a VERY LARGE multi-national corporation is not getting special treatment in a police investigation if any evidence (which by statute is public record) is atypically suppressed?

The video may be heart-wrenching and terribly unsettling, but the process should be maintained.

(R. Niles - Apologies for the duplicate post ... forgot to sign in).

From Robert Niles on March 10, 2010 at 6:01 PM
Nothing removes copyright protection, certainly not handing over requested material to the police. Going through the expense of waiting for a court order would simply waste the sheriff's time and SeaWorld's money and resulted in even more bad publicity for SeaWorld.

SeaWorld has no choice but to hand over its video, but continues to have whatever copyright claim it would have had over the republication of that material had it not been part of a sheriff's investigation. (FWIW, I have studied media law.)

The fair use exemption for newsworthy content will be the critical factor here, though, once the public has access to the material via the sheriff's office. Theoretically, the public would have had the same fair use right to snippets of the video if the sheriff hadn't gotten it, but in practice the public wouldn't have been able to access the video, since presumably SeaWorld would not have made it available without either a subpoena or the (implied) threat of one.

The sheriff's investigation forced SeaWorld's hand, so I think this will ultimately come down to a judicial decision over whatever amount of republication would be newsworthy fair use by whatever sleazy publication might attempt to republish the video or a screen grab of it. SeaWorld's preemptive legal action is an attempt to influence the court to take a very restrictive view in that decision.

From TH Creative on March 10, 2010 at 6:37 PM
Mr Niles writes: "SeaWorld has no choice but to hand over its video ..."

I respond: Absolutely wrong! They have due process and could fight that demand in court. Not saying they would have won, but any concerns they have over losing copyrights because of the tapes being released as a part of the public record could have been advanced BEFORE they handed the them over to the cops.

And I'm not saying they don't have a chance to claim copyright, but I have not read any report indicating that they expressed any such concerns before handing over the tapes.

From 76.26.184.25 on March 11, 2010 at 6:18 AM
Mr. Niles- thank you for a great article. As a journalist you and your peers might be expected to clamor over the opportunity to show the footage. I applaud your recommendation to honor human life and public emotions by not displaying the video publicly.

TH, I think you overlook how any park like SeaWorld would want to assist in an official police investigation, and cooperate with officials. I also think you overestimate how long the due process you spoke of would take- honestly a warrant can not take that long to obtain. I think I understand your point about the immunity of large corporations (I would extend it to wealthy citizens also). In those terms I agree with you- nothing and no one should be immune from the law.

I would like to stress that there is a HUGE difference between the public having the right to view the footage, and broadcasting it on national television. I hope that copy right laws do apply here, and anyone that wishes to view the footage can do so in private only.

From Rob P on March 11, 2010 at 7:14 AM
What about individuals owning the intellectual rights to photographs of themselves taken at the Parks ?

Is there something printed on your entry ticket stipulating that all media taken at the Park is their property ? If not then Seaworld, or any other body, may have great difficulty in exercising any pressure to prohibit publication of " home movies".

We witness ,almost every day,cases in the Courts where one party is trying to sue another ( usually the Press ! ) for taking photos or movies of the claimant. The stats on the success of such litigation would make interesting reading.

In any case would Seaworld risk such poor publicity ?

From Jessy VanDivner on March 11, 2010 at 1:05 PM
I am extremely interested to see this video, and assume it would be educational to the world at large. I find it disturbing that so many of you are offended by the idea of watching this, and having it easily available on the internet for everyone. Narrated video capture is a much better form of documentation than a "visual memory-safe" printed news article. Not wanting to see this sounds too much like the hypocrites who eat meat, but refuse to watch videos from the slaughterhouse.
From Brandon Mendoza on March 11, 2010 at 3:34 PM
Jessy, I think you're touching upon the wrong ideas with slaughterhouses and meat. This is a different issue between a cow being processed for food and a person being attacked and killed in a show. The difference between hunting for your own food vs. a slaughterhouse is a completely different issue.

While I do agree that it should be available to the public, it shouldn't be on the internet. Just like any investigation, there should be sufficient reasoning to watch the video. A person died and there's no reason a regular "joe schmoe" should watch it. That's like wanting to see video of someone dying at a Cirque du Soleil show from a stunt gone wrong. Or seeing a fatal car accident that you had nothing to do with on a different freeway.

How is that educational? Unless you have intentions to develop more safety features in a show without sacrificing theatrical effects, there's no reason to watch.

From Jessy VanDivner on March 11, 2010 at 10:05 PM
"That's like wanting to see video of someone dying at a Cirque du Soleil show from a stunt gone wrong. Or seeing a fatal car accident that you had nothing to do with on a different freeway."
Either of those events are interesting to me as well. Let me tell you something: my mom showed me the blood-stained clothes my dad was wearing when he died in a motorcycle crash that was his fault. When I drive, I have that image burned into my memory. It keeps me safe.

"How is that educational? Unless you have intentions to develop more safety features in a show without sacrificing theatrical effects, there's no reason to watch."
I suppose there's no reason to watch a nature documentary, either, then? A video of this actually happening would teach people about the world they live in. It can help to answer questions, such as whether it's worth putting an animal in captivity, for amusement, when something like this could happen to a human being.

The more visceral you can make an event for people, the more it matters to them. There is no reason to stop the spread of information. It's not anyone's right to deem what is and is not beneficial to know. Personally, I like to know as much as possible. It may not be as beneficial for me to see this, as it is to someone who is interested in working with these animals, but who's to say I won't have a Steve Irwin-esque child someday to whom this video would illustrate the risks involved?

If I had a video of my dad dying in that motorcycle crash, intoxicated, the right thing to do would be to share it with the world. If seeing his imploded skull was enough to save any one person's life, by getting them to NOT do what he did, it would be worth it.

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