Don’t Let Your On-Line Video Land You In Court
Think you can use that TV news clip in your video?
Think you can use just a few seconds of that web footage?
Think you can use that stock image?
“It’s gotten pretty challenging for PR to avoid legal issues with on-line video,” according to Laura Possessky, media and entertainment law attorney, because “PR use is by definition not necessarily a commercial use to advertise for a product, and it is not necessarily a news event, so what makes it challenging in the PR field is that the legal rules on this are more grey than black and white. That means PR professionals are always having to make that critical judgement—what is the piece going to represent and what is the context here.”
If the videos you make are put online, be aware that distributors like YouTube will pull them off very quickly if there is even a hint of copyright issues. Anyone who is a copyright owner can file a take-down notice. “It’s happening more and more,” says Possessky, “because the major content owners in the music and film industry have leaned heavily on internet distributors to do a better job of removing unauthorized copyrighted material.” And getting the video back up is a difficult process.
No one wants to produce a video that gets pulled and no one wants to produce a video that winds up in court. So what can you do to protect your product and not waste your client’s money? There is always some risk involved in producing video, especially if you want to approach your client’s subject matter in an innovative manner, and it’s why some PR professionals shy away from video. But it doesn’t need to be that way. There are some pretty solid steps you can take to minimize the chance you’ll ever need to call a lawyer.
Possessky says that getting your ducks all in a row before you start is the most cost-effective way to avoid legal issues. Paying up front for certain things is a lot less costly than having to come back around and pay for it a year or two later. First, she says, if you are not producing it in-house, find a producer who will stand behind their product and has indicated to you knowledge of the rights and permissions that might be required. Then think very carefully about how you will use the material- – will it be shown at a conference, how many people will see it and will it go on the web? If it’s going on the web, how long? Also think about where you will be videotaping and what is identifiable in the background. Will you be using footage or materials provided by a third party? And if so, in what context will you use those materials?
Checklist of Clearance Issues
Media, entertainment and internet attorney Joy Butler says creating a checklist of clearance issues is a good idea at the start of a project. In her book, The Permission Seeker’s Guide Through The Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions, she includes a checklist of clearance issues as they might relate to: people, subject matter, location, music, company names, products and 3rd party footage.
Tips Specific to PR Video
Many PR-produced videos often have a few stock images, and most people assume, says Butler, that paying the stock image company for the rights has them covered. But she says, “that is not necessarily the case. Stock houses may get releases from models that allow their use in promotional videos, but do not cover a use dealing with sensitive material.” Take for example the Getty Image-HIV Ad lawsuit, in which the person photographed was used in an advertisement that implied she was HIV positive. She is not and she sued. Butler says “the license granted by the stock house frequently includes only rights related to the copyright of the image, and leaves the PR firm on its own to clear any additional rights triggered by the use of the image like privacy, publicity and defamation.”
Release forms. This is an area where planning ahead is so important. With most release forms, the more encompassing you are with your intended uses, the better. There are samples of release forms in the back of The Permission Seeker’s Guide Through the Legal Jungle, and key to these releases is thinking about the future as many companies will often use footage many different ways, over a period of many years. For example, one of Butler’s sample releases: “The rights I grant to Producer are irrevocable, perpetual, worldwide, and include the right to use the interview in any form, media, language or technology, now known or later developed,” would likely keep you covered for many years. But, as in the Getty case above, the producers would have needed a very specific release form signed by the model, allowing use in an ad that would depict her as HIV positive.
Airchecks and Third Party Footage. Using airchecks and other footage is probably where PR people need to make the most judgement calls because it often calls into play the concept of “fair use.” It’s such an important part of making videos that American University’s Center for Social Media together with AU’s Washington College of Law put together the Code of Best Practices in Fair Use for Online Video. At risk of simplifying something complex, it is ok to use copyrighted material without obtaining permission under some circumstances. This article can only begin to touch on the factors that qualify something as fair use. If you regularly produce videos, it’s a good idea to familiarize yourself with the examples listed in AU’s Code as this is probably one of the copyright issues that comes up most often in PR. The Copyright Act lists favored uses for fair use and Butler says those are “criticism, comment, news reporting, teaching, scholarship and research.” As with most copyright issues, how you use the material is key. Using a snippet of a TV news clip to show how something was covered in the news media at the time would likely be considered fair use as long as your entire video was not just news clips and you were not indicating that the news station endorsed your subject or product. Third party footage may in some circumstances also be considered fair use but Possessky says it is always important to look at the different layers involved, who shot the video, who is in the video, is the location identifiable and are there products involved. There may be a layer that’s not covered under fair use. And finally,
Music. Ahh. Music. Show me a video producer who has not heard this and I will show you a video producer who is not a video producer: “I heard something on the radio last week and I really would like to use that in the video. Can we do that?” Well, the answer might be “Yes!” if you have a big wallet and about a month to obtain clearance. So that then means the answer is likely, “No!” Any music that is used to move along a piece or create mood, must, that is must, be licensed. I recommend that you get a copy of the license to the music from the producer. This way you will know exactly how long you are allowed to use the music and you’ll have it should you or your client need proof. Once the term is over, the video must be pulled completely off the site. Even if you keep the video on a back page that no one can find without a specific URL, content trollers can find it. Music licensing companies have software that can locate their music anywhere on the web, and they will come knocking at your door and bill you $1,000 or more if they find your rights were never purchased or expired—that’s what you could be charged even if your original cost would have been $75. And no one wants to have to come up with that kind of money five years after the project has been completed.
So it’s important that before you upload, you’ve clearly thought through clearances, releases and rights. That will likely be your best shot in any video you make, and will keep you and your client’s beautifully produced video, out of court.
This blog also appears on O’Dwyers: Inside News of Marketing & Public Relations and the Public Relations Society of America, National Capital Chapter.