Can you infringe on a TV show’s copyright by predicting what’s going to happen in the next episode?
Spoiler Alert: No. Of course not.
Now, would somebody please explain that to HBO and AMC?
Both networks have come under fire recently for going after websites where people predict what’s going to happen on shows like Game of Thrones and The Walking Dead. The networks have done so via DMCA takedown notices.
Here’s a DMCA refresher from my March 2015 blog post Can You Use Copyright to Combat Controversial Online Speech?
Go to the “Terms and Conditions” of any website that hosts user-generated content and you’ll see some info about their DMCA takedown notice procedure. The idea is that if you own the copyright for some piece of content – written copy, images, videos, whatever – and you find that someone’s using it online without your permission, you can send in this kind of notice to the hosting service, and, most likely, the service will take it down.
This provides hosting services with what’s called “safe harbor.” The service can’t be sued directly for copyright infringement if they comply with the DMCA takedown procedure. Theoretically, if this safe harbor protection wasn’t in place, there would be no blogging, social media, or web hosting companies; they would all have been sued out of existence for inadvertent copyright infringement.
The Game of Thrones and Walking Cases
Back in May, a YouTube user who goes by Frikidoctor received a DMCA takedown notice related to a video in which he appeared in a Mexican wrestler costume and made predictions about what would happen on Game of Thrones Season 6, Episode 3. You can see the video here (note: it’s in Spanish):
YouTube took the video down. Frikidoctor appealed to YouTube, and the video was reinstated.
This week, TechDirt reported that “The Spoiling Dead Fans,” a Facebook fan group of The Walking Dead, had received a DMCA takedown notice from AMC. Click here to read the relevant post on the Facebook group. The group claims to have received a
…cease and desist and a threat of a lawsuit by AMC Holdings, LLC’s attorney, Dennis Wilson. They say we can’t make any type of prediction about the Lucille Victim [The unknown character killed in the last episode of the most recent season]. Their stance is that making such a prediction would be considered copyright infringement. AMC tells us that we made some claim somewhere that says we received “copyright protected, trade secret information about the most critical plot information in the unreleased next season of The Walking Dead” and that we announced we were going to disclose this protected information. We still aren’t sure where we supposedly made this claim because they did not identify where it was.
Rather than continue to post their theories about the show, The Spoiling Dead Fans appear to have conceded in order to avoid a protracted and expensive legal fight:
After consultation with our legal counsel, we have responded to AMC that the TSDF staff will not be posting our prediction…on any of our outlets. We will also not be answering any questions about who we think it is.
They claim to have received previous DMCA notices from AMC. Of course, unless someone posts those notices, it’s impossible to verify how accurate their claims are.
The Bottom Line – Is It OK to Guess About a Future Episode?
It’s not an infringement of copyright—or any other intellectual property right—to publicly guess what’s going to happen in a TV show, movie, novel, or any other form of entertainment. Whether or not that prediction is accurate makes no difference.
The actual content of an upcoming episode is protected by copyright law (and, most likely, trade secret law as well), so if you come across that information, you are advised not to share it. But if you’re just guessing? Go ahead, guess away. And if you receive a bogus DMCA takedown notice, tell the world about it, so we can all see who’s using the system properly and who’s abusing it.