Short Videos as Copyright Objects

With the rise of blogging, short videos on various social media platforms have gained significant popularity among users. These videos range from a few seconds to a few minutes. Reels, shorts, VK clips, TikTok – almost every social media platform has its own name for these short videos. Content creators fill these short videos with diverse content, from entertainment to expert opinions. From an intellectual property perspective, these short videos can be recognized as copyright objects, meaning that there are legal consequences for violating rights to such objects.

Thus, the Arbitration Court of the Moscow Region, as a court of first instance, is considering a claim from one individual entrepreneur to another to stop the illegal use of a short video and to recover compensation in the amount of 500,000 rubles in case No.A41-101804/23. This article will use the above-mentioned court case as an example, in which for the first time the court of first instance sought compensation for violation of rights to a short video.

First and foremost, it is essential to note that in disputes over the protection of copyright objects, according to part 1 of Article 65 of the Arbitration Procedure Code of the Russian Federation, the plaintiff must prove their ownership of exclusive rights to the work and the fact that the defendant violated these exclusive rights in one of the ways listed in paragraph 2 of Article 1270 of the Civil Code of the Russian Federation. The defendant must prove that they complied with the law when using the works.

First, let's consider the fact of ownership of exclusive rights to the work in relation to short videos.

Exclusive rights to the subject of copyright in relation to a short video

In accordance with subparagraph 1 of paragraph 1 of Article of the Civil Code of the Russian Federation, works of science, literature and art are the results of intellectual activity that are granted legal protection. A variety of such works are audiovisual works, consisting of a recorded series of interconnected images, accompanied or unaccompanied by sound, intended for visual and auditory perception. Based on paragraph six of paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, the objects of copyright are works, regardless of the merits and purpose of the work, as well as the method of its expression.

As follows from the materials of case No. A41-101804/23, the plaintiff is the author and copyright holder of the copyrighted work - an audiovisual work (short video) “5 things to do after paying off your mortgage,” posted on the social network Instagram [1].

The court considered the plaintiff's authorship of the short video to be proven based on the following evidence: script, audiovisual work performed and published directly by the plaintiff, information posted under the published audiovisual work.

In addition, as explained in paragraph 109 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation”, when considering a case on copyright protection by the court, one must proceed from the fact that, until it has been proven otherwise, the author of the work is considered to be the person indicated as such on the original or copy of the work or otherwise in accordance with paragraph 1 of Art. 1300 of the Civil Code of the Russian Federation (Article 1257 of the Civil Code of the Russian Federation), in the Register of Computer Programs or in the Register of Databases (clause 6 of Article 1262 of the Civil Code of the Russian Federation).

By virtue of paragraph 1 of Art. 1300 of the Civil Code of the Russian Federation, copyright information is any information that identifies the work, the author or other copyright holder, or information about the conditions for use of the work, which is contained on the original or a copy of the work, attached to it, or appears in connection with a broadcast or cable broadcast or bringing such work to the public, as well as any numbers and codes containing such information.

In pursuance of these provisions in case No. A41-101804/23, the plaintiff provided the following information identifying the work from a social network: the title of the work, the author and the copyright holder of the work.

A short video as a composite work

Claims made in defense of copyright objects included in the work are also protected by paragraphs. 2 p. 2 art. 1270 of the Civil Code of the Russian Federation: objects of copyright include composite works, that is, works that are the result of creative work in the selection or arrangement of materials.

According to paragraph 2 of Article 1260 of the Civil Code of the Russian Federation, the compiler of a collection and the author of another composite work (anthology, encyclopedia, database, website, atlas or other similar work) owns the copyright for the selection or arrangement of materials they made (compilation).

As explained in paragraph 80 of Resolution No. 10, it is necessary to take into account that the mere lack of novelty, uniqueness and (or) originality of the result of intellectual activity cannot indicate that such a result was not created by creative work and, therefore, is not an object copyright.

In case No. A41-101804/23, a short video is considered as a composite work. In particular, the court indicated that the plaintiff’s short video is distinguished by its original presentation, author’s sequence and structure, and original author’s content.

In addition, with regard to the short video, the court also specified that:

• “The content of the short video is not a quotation of a regulatory legal act. The plaintiff, based on his experience and professional activities, creatively determined the steps necessary to take after the mortgage was paid off. These steps are not a legal algorithm enshrined in legislation. The defendant did not provide links to legal sources that set out the content of the controversial video verbatim.”
• “In the audiovisual work (short video) of the plaintiff, the sixth step, which has a humorous overtones, is the proposal to take out a new mortgage, which also cannot be considered as a fixed algorithm.”

Fact of violation of exclusive rights by the defendant

The provisions of paragraph 1 of Article 1270 of the Civil Code of the Russian Federation provide that the author of a work or other copyright holder has the exclusive right to use the work in accordance with Article 1229 of this Code in any form and in any way that does not contradict the law (exclusive right to a work), including the methods specified in paragraph 2 of this article. The copyright holder can dispose of the exclusive right to the work.

In paragraph 89 of Resolution No. 10 it is explained that the use of works of science, literature and art by any means, both specified and not specified in subparagraphs 1 - 11 of paragraph 2 of Article 1270 of the Civil Code of the Russian Federation, regardless of whether the corresponding actions are carried out for the purpose of profit or without such a purpose, is permitted only with the consent of the author or other copyright holder, with the exception of cases where the Civil Code of the Russian Federation allows free use of the work.

Illegal use of a work by any of the methods mentioned in paragraph 2 of Article 1270 of the Civil Code of the Russian Federation constitutes an independent violation of the exclusive right.

The use of a work is considered to include bringing the work to the public in such a way that any person can access the work from any place and at any time of their own choice (bringing to the public) (subclause 11 of clause 2 of Article 1270 of the Civil Code of the Russian Federation).

In case No. A41-101804/23 the plaintiff provided evidence of the illegal use of the video by the defendant, namely: a protocol for automated recording of information; screenshots and video recording of the violation; comparative analysis of audiovisual works.

Having examined the circumstances of the case, the court found that “the defendant, without obtaining any consent, illegally copied the copyright objects included in the audiovisual work verbatim, completely copied the sequence, structure and content of the audiovisual work. The defendant illegally used the results of the plaintiff’s intellectual activity: by completely copying the text work, the sequence, structure and content of the audiovisual work (and not a separate phrase, word or legal algorithm, article from the law), and also placed similar images against the background of the text.”

Having assessed the totality and interrelation of all the arguments presented and the evidence presented in the case file, the court decided to recover compensation from the defendant in the amount of 300,000 rubles out of 500,000 rubles claimed by the plaintiff. At the moment, the defendant has filed an appeal against the decision of the trial court. We will wait to see whether the appeal court will uphold the decision of the trial court.

At the same time, this case is quite significant, since it is the first court case in which the court recognized a short video as an object of copyright. Content creators need to be more careful when creating their works. Copying the work of another person, including the sequence, structure and content of an audiovisual work, may serve as a basis for imposing liability, including compensation.

[1] Instagram - Meta project Platforms Inc., whose activities are prohibited in Russia.