Prof. James Gibson drew my attention to this blog post, which talks about NBC inserting its logo into the tape they received from Seung-Hui Cho. It made me think about copyright ownership in the tape.
Clearly, the tape is copyrightable subject matter, and Mr. Cho was the original holder holder of copyright. Presumably, those rights passed to his estate, and probably his family (I’m guessing he died intestate.). That means the family now holds copyright in the tape. NBC may argue that they were given the tape by Mr. Cho, and they own it, but that deals only with the physical copy of the tape, not its IP rights.
NBC’s broadcast of the tape constitutes infringement of the public performance right. I can imagine that at some point Mr. Cho’s family would not want the tape broadcast any longer (or at all for that matter — having that tape broadcast over and over must be incredibly painful). Could they stop NBC from broadcasting it? Or, given its wide availability on the Internet, could they get it removed from the relevant sites?
Granted, NBC has a reasonably good fair use argument to broadcast portions of the tape for purposes of news reporting, etc. They may also have an implied license argument to broadcast the tape. Even so, there’s presumably a limit to how far these arguments take NBC, and I’m not sure that they can shield YouTube’s users who’ve posted the tape.
I can see lots of policy reasons that copyright should protect tapes like this very little, if at all, but existing doctrine doesn’t make such a result clear. Perhaps that tells us something about the way fair use is presently constructed.