Video search marketing has exploded in the past few years. the problem is that most marketers today, especially those in small-to-medium businesses, have no idea what the legal issues with online video are.
As a video search marketing professional and legal analyst of new media, I’ve put together this introductory guide for marketers on understanding the most important legal issues with video in search marketing, the serious consequences of not following the law; and tips for how to protect your own video assets and your business.
I recently covered some of these issues with attorney Daliah Saper, of SaperLaw.com in the video below, and I’ve highlighted some of the key points in our discussion below..
- Copyright infringement – the unauthorized use of a video, or any content featured in a video, under copyright by someone else. This includes the right to reproduce or perform the copyrighted work, or make derivative works.
- Trademark infringement – using a trademarked name or other brand’s identity in your video, which causes consumer confusion and can cause damage to the owner’s trademark.
- Right of publicity – also called “personality rights;” this is the right to control how your image is used for any purpose. (I.e., to keep one’s image and likeness from being commercially exploited without permission or contractual compensation.) In a video recording, this can apply not only to other people, but private locations and facilities featured in a video. This is one of the reasons why search-marketing conferences have strict video recording policies for all attendees.
- Right of privacy – basically, the right to be left alone and not have one’s personality represented publicly without permission. In a video recording, this would apply to an individual person’s rights to not be video recorded for commercial or non-newsworthy use, and to not take that person’s name
- Defamation – making malicious statements in your public video against someone else that are knowingly false, or with a callous and reckless disregard for the facts; and which can be shown to cause damage or likely create a negative image. Defamation in video commonly happens in two situations:
- A company or individual will either shoot a video with defamatory content about another company or professional individual
- A business or individual will create a user-generated content space that allows others to submit defamatory video content about another business or individual, and not respond in a timely and appropriate manner to removal/complaint notices.
Serious consequences for not following the law:
- Injunctions – you videos may be removed from your video sharing site (like YouTube), or even from your own website if your ISP or Web Host has received a DMCA takedown notice. if the situation is considered egregious enough by your video host, they may suspend or cancel your account altogether.
- Civil lawsuit – you could be sued for financial penalties, both compensatory and punitive (in the case of any infringements of registered trademark or copyrights). Your clients or partners could also hold you liable for failing to get the necessary clearances in advance of doing the work.
- Loss of reputation and business – you may lose the trust of clients and prospects if you have a record of violating legal guidelines and lawsuits to deal with.
I’ve put together what I consider to be the 5 most important tips that everyone should take as necessary precautions to protect theirs’ and their clients’ video assets, and be successful in their video marketing activities.
There can be a lot of intellectual property issues and personal rights involved with any video you produce and publish, and market for commercial or promotional purposes. These can include:
- Other people’s own copyrighted footage – e.g., video, audio recordings, or graphics – you wish to insert in your video.
- Talent featured in the video - either paid or non-paid.
- Locations in your video - if you’re shooting at an event, you may also have to get permissions from the facility holding the event, as well as the event promoters.
- Usage – How you feature any of these people or things in your video directly relates to the types of permissions you need. Even if you have permission to record something or someone, you may only be allowed to do so for personal use, not for public use. Or, you may be allowed to publish a video for informational purposes, but not for commercial purposes. (I.e., such as implying an endorsement of your business or to sell something.)
- Content – Are you portraying anyone in an unfavorable light? better make sure you got your facts straight, and you’re not intentionally trying to misrepresent yourself or others.
The first thing you should always do when using any footage or content in your video that is not your own, is check for who owns it.
Look for original sources, and do searches online for the trademark name or copyright registration. That’s the best way to track down the owners and find out about what you may or may not have permission to use, and what licenses you may need to arrange and purchase for such use.
The best way to get permissions is to have a written release waiver. the New Media Rights website provides a legal guide to getting video releases, and the use of audio and video recordings. Finding release waivers templates online is a very basic form of legal insurance.
However, for those who are serious about protecting their video assets and themselves, I strongly recommend consulting with an attorney to review or create your video release waiver form. (See below, “Know when to Consult with An Attorney.”)
If you can’t get a written waiver, your next step is getting an email with expressed permission. (However you will have the challenge of being very specific in your request and using the proper legally binding language for your permitted use.)
If you can’t get an email, at least get a recorded verbal release from the person you’re video recording, or whoever has the authority to grant a video recording of wherever you are shooting.
Here’s the best and simplest advice I can give on permissions. if you’re not sure if you have permission to use someone else’s video, or use something in your video, then the safest thing do to is not use it!
Video publishers and marketers who haven’t received expressed permissions (such as in writing or otherwise recorded) definitely need to understand what is fair use – I.e., when you have protection under the law to copy someone’s copyrighted material.
Fair use protections with a video are much stronger when that video is considered “newsworthy,” versus publishing a video primarily for commercial purposes (or even selling that video).
The good news is there’s a lot of information on the Internet with legal tips for online video marketing, and it doesn’t have to cost you a cent. Review in advance any website guidelines for submitting video content, (especially copyright and trademark guidelines), and for filing claims and counter-claims on copyright or trademark infringement.
I strongly recommend checking out YouTube’s Copyright Overview section, YouTube’s Trademark Complaint Form, YouTube’s Abuse & Safety Center, YouTube’s Community Guidelines, YouTube’s legal inquiries page and legal resources page. also be familiar with DMCA takedown notices, both for knowing how to file in case of a legal dispute, such as a claim or counter-claim.
And I would be amiss to not include my own legal resources with online video: ReelSEO’s Online Video and the Law column; and my YouTube Channel, Legal Video Guys, which covers legal issues with online video marketing.
If you haven’t done so at least once already, talk with an attorney who specializes in intellectual property, Internet law, and entertainment law. (Ideally, one who not only follows the online video space and has consulted with clients on web video campaigns, but participates in web video marketing as well.)
If you’re doing a big campaign involving video, consider budgeting for consulting with an attorney to have your project plans reviewed. This way, you can be advised on what permissions you may or may not need to get, and what precautions you may need to take, before you start shooting, and then publishing. at the very least, you should have a much better awareness of what the risks are and how to prepare accordingly
Make sure that your written contracts with clients, vendors, and other 3rd parties has clear language that absolves you from liability from any unauthorized and restricted video content which they may provide you with, and you are expected to work with, or create on their behalf.
For example, I had this case one time with a client who assured me that they received permission from their headquarters office do a video shoot for their website and YouTube channel, only to have the entire shoot and marketing budget go to waste after all the work was completed, because of a cease-and-desist notice when HQ decided to not allow the content for saying it was in conflict with their brand guidelines – something that was the client’s responsibility to provide all along.
I CAN RECOMMEND!