• Rosie Burbidge

Who is liable when YouTube collaborators split?



The problems that can arise when business partners fall out were illustrated by the recent judgment in Costa v DissociaDID Ltd & Anor. In this case, His Honour Judge Hacon was tasked with clearing up various copyright disputes over literary works created for a YouTube channel, DissociaDID. (DID stands for dissociative identity disorder, formerly known as multiple personality disorder.)


The case was brought by Sergi Mendes Costa, who had collaborated with the defendant, Chloe Wilkinson, the creator of the channel. The collaboration resulted in (i) nine literary works (such as the scripts for the videos); (ii) eight works of joint authorship; and (iii) a “disclaimer”, the authorship of which was disputed.


Costa sought an injunction and compensation for infringement of copyright, having already secured takedowns by YouTube. Wilkinson argued that there was an implied licence to use the works and that Costa’s submission of takedown notices to YouTube was unlawful.


Joint authorship, contract and licence

The judge first addressed the authorship of the disclaimer. He concluded that there was no collaboration on the disclaimer, and Ms Wilkinson was the sole author: “Mr Costa did no more than make a suggestion to Ms Wilkinson to improve her work, the suggestion consisting of the addition of words which are commonplace in a disclaimer.”


He also found that there was no contract between the parties, but had the contract existed it would not have contained implied terms regarding use of the content during and after its term that Wilkinson claimed.


The next question that arose was when the “bare licence” granted by Costa to Wilkinson ended. HHJ Hacon found that notice was given to terminate the licence on 23 November 2020, and that “in the hypothetical world of Mr Costa acting reasonably” the parties would have agreed an eight-month notice period. Wilkinson’s argument that Costa was estopped form terminating the licence was not properly pleaded, and was rejected.


Costa’s rights in the joint works had therefore been infringed from 23 July 2021, and he was entitled to seek an inquiry, nominal damages or an account of profits for any losses suffered after this date. However, the judge cautioned that “the court will have to be satisfied in due course that the scale of compensation likely to be awarded is proportionate to the time of the court that would be taken up in assessing what the sum is”.


YouTube takedowns

Costa had submitted takedown requests to YouTube on 22 February 2021, resulting in the removal of videos two days later. Further requests followed. The disclaimer in the description box of the URL hosting the videos was also removed.


Having found that Costa was not a joint author of the disclaimer, the judge concluded that the representations that he was a joint author were false and his later representation that the defendants were using the disclaimer was also false, as was his representation that it was being used without his permission.


Moreover, Costa knew that his representation was false from 13 March 2021 and YouTube relied on it. He intended YouTube to act on his takedown requests and the judge inferred that he did this “because he wanted to cause harm to the defendants, harm generated by videos vanishing in large numbers from the channel”.


He therefore caused the defendants loss by unlawful means and the defendants could claim compensation in relation to videos taken down after 13 March 2021.


Lessons for content creators

The judgment provides useful guidance on the law on joint authorship, contracts and unlawful means. More generally, it is a warning about the consequences that arise when business partners fall out. The effect of the judge’s findings is that each party is liable to the other, although the extent of any compensation due remains uncertain.


Especially given the continuing growth in the creation of copyright content on the Internet and social media, co-creators should address the terms of their collaboration, based on legal advice where appropriate, as a priority when working together. That should avoid the need for lengthy, expensive, draining and ultimately often unrewarding disputes in court.


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


#authorship #takedowns #content #Youtube #copyright

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