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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Seeing Is Believing: How to Create Multimedia Content That Gets Seen // Take-aways from the Sept. 17 PRSA-NCC Professional Development Workshop

(Pictured from Left to Right) Justin Bank, Stephen Menick, Staff Sgt. Mark Fayloga, John Walls, Drew Blais

(Panelists pictured from Left to Right) Justin Bank, Stephen Menick, Staff Sgt. Mark Fayloga, John Walls, Drew Blais

Does your multimedia content have that “gotta see this!” factor? If not, then that’s just one thing you’re doing wrong when trying to get your multimedia content seen.   PRSA-NCC’s “Seeing Is Believing: How to Create Multimedia Content That Gets Seen” event gave valuable insight to attendees that was worth more than admission.

Panelists were:

  • Justin Bank, Director of Digital Audience, Washington Post
  • Stephen Menick, a producer and editor who also teaches Digital Storytelling at WVU’s Integrated Marketing Communications program
  • Staff Sgt. Mark Fayloga, Office of Marine Corps Communications Digital Engagement Branch Chief at Headquarters Marine Corps
  • John Walls, Senior Vice President of Public Affairs at CTIA, the Wireless Association
  • Drew Blais, Digital Communication Specialist, Van Eperen & Company
  • Moderator:  Meredith Williams, MPH, Principal Associate at Abt Associates

While he spoke last, Van Eperen & Company’s Digital Communications Specialist Drew Blais and his “six steps towards video success” finely encompasses much of what all the panelists advised.  You have to have a strategy in place. That includes knowing your objective, knowing your audience, defining your concept, making sure you have your “gotta see this!” factor, know how you’re going to deliver your content and, last but not least, you have to track your metrics.

(Pictured from Left to Right) Justin Bank, Drew Blais, Meredith Williams, Stephen Menick, Staff Sgt. Mark Fayloga

(Pictured from Left to Right) Justin Bank, Drew Blais, Meredith Williams, Stephen Menick, Staff Sgt. Mark Fayloga

When it comes to knowing your concept, both filmmaker and Professor Stephen Menek and Staff Sgt. Mark Fayloga, gave real-life examples of the type of content people pay attention to and share. Menek shared with the audience that video is less it’s own multimedia content than it is really emotional content. And for Menek, having that “you gotta see this!” factor is big, real big. Take for example Staff Sgt. Fayloga’s short 30-second videos of Marines blowing up targets and military jets taking off from cruise ship carriers. Queuing up videos that get to the point and capture the attention are much more likely to get seen and shared than longer videos without attention-grabbing content.

But not all multimedia content has explosions. Menek’s example of Dove’s real beauty sketches videos (64 million views as of this writing) of a sketch artist capturing how women described themselves and then how others would describe them had nothing to do with selling soap, but had everything to do with connecting with the audience. Dove’s videos was a gift to audiences, sharing a story that captured their attention and earned their loyalty because it connected with viewers at an emotional level.

It’s something that the Washington Post’s Justin Bank, another expert panelist, would likely argue helps your content fight through the noise in a 21st century media environment.  These days there are multiple channels through which you can share your content. Organizations are being equipped with the tools they need to become their own publishers. And multimedia content “breaks the line of sight” according to the Post’s Bank, in a way that most other content won’t.

In general — besides having good content and good concept, whether your multimedia content gets seen or it doesn’t, learning by analyzing your results is key to helping to have your next multimedia content get seen. Don’t ignore Google Analytics or Facebook’s metrics reporting. Use these platforms to identify what works. Use both quantitative data and qualitative reporting to improve your future content and improve your results.

For this event, unveiling some of the secrets on how to get your multimedia content seen may have been the easy part.  The hard part? Putting this panel’s great advice to work and challenging yourself to get your multimedia content seen.

 

-Written by David Ward, American Wind Energy Association

How “The Avengers” Boosts PR Results

By Michael Smart (MichaelSMARTPR)

I will be sharing a bunch of media pitching tips and techniques during the Nov. 2 seminar for PRSA-NCC. I’d like to share one in advance.

I’m big on using pop culture to land positive placements. Here’s an example….

A sober and geeky disaster analysis company landed several dozen media placements, including Bloomberg, the Guardian, and Gizmodo, with one connection to the movie “The Avengers.”

The analysts worked up an estimate for how much it would cost to repair damage to Manhattan caused in the film’s climactic scene. The answer ($160 billion) is beside the point – isn’t the idea alone a great way to naturally create a story journalists and bloggers would love to tell?

Keep in mind, I’m not talking about merely offering your experts as sources for ongoing news. That’s working great for prominent divorce attorneys in the wake of the latest celebrity breakup, but is not a surefire way to ensure you are a part of the resulting stories.

Kinetic Analysis Corp got loads of free publicity — that is on-message for them – by delivering a value-add to journalists and bloggers already looking for new angles on the year’s top film. Instead of offering themselves as one source among many who could comment on a given natural disaster, they produced a deliverable that required mentioning them in any resulting story.

So next time you’re chatting with your friends about a pop culture phenomenon, take a few minutes and brainstorm any potential ties your organization might have.

Not just what you can SAY about it, but what you can DO about it.

You might surprise yourself and end up with the next media relations blockbuster.

To register for “Perfect Pitching: Winning over Journalists and Bloggers in the New Media Landscape,” click here.

Michael Smart, principal of MichaelSMARTPR, has been landing top-tier coverage for 14 years. He’s also trained more than 3,000 communicators across the globe how to boost their media and blog placements, including pros from Allstate, Disney, Verizon, Edelman, Fleishman-Hilliard, the EPA, a U.S. Senator’s office and many other companies, associations, and non-profits, large and small. Michael has twice been a top-rated presenter at the PRSA International Conference, and he partners with PRSA to offer daylong pitching workshops and national webinars on the topic.

Wanna Be A Star?

Want to be recognized as a PR star?  Submit your program or component for a 2011 Thoth award and get the recognition you deserve.  Early bird deadline is June 17 and the regular deadline is July 8.  There are 35 categories, with additional categories added this year, which means more opportunities to achieve recognition.

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