How to Keep Your Online Video Out of Court

Sue Stolov

Sue Stolov, director, producer and writer with Washington Independent Productions in Washington, D.C.

Chances are pretty good that if you have been producing online video for your clients, you’ve probably included several of these:

  • A TV news clip
  • Stock images
  • Government provided b-roll
  • Several seconds of a song

Think you can do all that? Think again.

While new technology has made it easier to edit and post quicker, the laws are still the same. In fact, according to media and internet law attorney Laura Possessky “it’s gotten pretty challenging for PR to avoid legal issues with online video,” because “PR use is by definition not necessarily a commercial use, and it is not necessarily a news event, so the legal rules on this are more gray 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.”

Combine that with the latest trend—the ramped up speed with which YouTube and other internet distributors pull down a video even if there is only a hint of copyright concern, and you’ve got a challenging situation. No one wants to waste their client’s money by producing a video that gets pulled, and no one wants that client’s video to wind up in court.

So how do we improve critical judgement skills? Learning some basics about copyright and fair use will empower you to know what you can and can’t do. And making some of these tips part of your video modus operandi can go a long way. So here’s what to look for with each of the above scenarios:

Using TV News Clips

This is probably the copyright issue that comes up most often in PR, and it’s where you really get to flex your judgement skills. Remember the Fair Use Doctrine that you studied in college? Here’s where it applies. At risk of simplifying something complex, media and internet attorney Joy Butler says it’s ok to use copyrighted material without obtaining permission under certain circumstances including “criticism, comment, news reporting, teaching, scholarship and research.” This has been such a gray area, American University’s Center for Social Media and Washington College of Law put together a Code of Best Practices in Fair Use for Online Video. It’s a great document and worth taking a look at. A co-author cautioned me that it focuses on online video and not specifically online PR video, and they would love to help our industry come up with its own code of best practices for PR video! If this is something that you think would be beneficial to PRSA membership, please let me know and perhaps we can form an exploratory committee.

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 you’re not indicating that the news station endorsed your subject or product.

Using Stock Footage

Most people assume that paying a stock company for footage or images has them covered, but that is not necessarily the case. Butler, who has written a useful book and companion blog, The Permission Seeker’s Guide Through The Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions, says it’s really important to look closely at rights. Most stock footage releases permit use in promotional videos, but not videos about sensitive material. And she says a good example of this is a case filed against Getty Image in which a stock shot was used in an ad that implied the talent was HIV positive. The talent was not and she sued. “The license granted by the stock house frequently includes only rights related to the copyright of the image,” Butler explained, “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.”

Working on a Federal Government Project

Copyright is approached differently on government projects. Videos made by the federal government, by government employees, are not protected by copyright—that’s not a green light, though, to use footage from a government video. While copyright may be a non-issue, you’re still responsible for any privacy issues or releases from the people who appear in the video. And, if your firm’s producing a video for the government, you’ll need to have the producer sign a work made for hire agreement, otherwise the producer retains the copyright, even if it is paid for by the government.

Can I use that song I heard on the radio last week?

Only if you have a very big wallet and at least a month to obtain clearance! Any music that is used to move along a piece or create mood must be licensed. Get a copy of this license from the producer so you’ll always know how long you can use the music and you will have it if you or your client ever needs proof. Once the term is over, delete the video from the site. Even if you keep the video on a back page that no one can find without a specific URL, content trollers will find it. Music licensing companies have software that locates their music anywhere online, and they will bill you $1,000 or more if the rights were never purchased or expired—that’s what you could be charged even if your original cost would have been $75. No one wants to have to come up with that kind of money five years after a project has been completed.

Two Additional Tips

Both Possessky and Butler were pretty clear that there are steps you can take to minimize the chance you’ll need a lawyer after your video is posted.

  1. Plan Ahead

Possessky says that getting your ducks all in a row at kick-off is probably the most cost-effective way to avoid legal issues. From the start, think very carefully about how you will use the material. Will it be shown at a conference? How many people will see it? Will you use footage provided by a third party and if so in what context? Will it be online and how long?

  1. Review Release Forms

Release forms are especially important for PR firms because our clients will often use footage many different ways, over a period of several years. With most releases, the more encompassing you are with your intended use, the better. In her book, The Permission Seeker’s Guide mentioned earlier, Butler includes rights clearance checklists and sample releases that cover people, location, music, company names, products and 3rd party footage. This sample release from her book, “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, and cover use in future mediums.

So it’s important that before you upload, you’ve clearly thought through how you are using the material as it relates to 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, online and out of court.

A longer version of this post will appear in the O’Dwyer’s Video & Social Media April issue.

Susan Stolov is a director, producer and writer with Washington Independent Productions in Washington, D.C. She currently authors the video tip series, Beyond Point and Shoot. Follow her @SueStolov and connect with her on LinkedIn.

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