Despite a vast increase in online video marketing, most marketers lack a basic understanding of the legal issues surrounding video. The consequences for that ignorance can include heavy fines, takedowns of content, account suspensions, and lawsuits, all of which can seriously hamper not only future video marketing projects but also a company’s ability to do business.
Online video’s advantage in reaching a large audience quickly can become a disadvantage when it comes to attracting unintended negative attention.
“The fact that online video can stay on the Internet for as long as the marketer wishes increases the chances that somewhere, sometime, someone will see what turns out to be offensive material,” says E. Leonard Rubin, an intellectual property and entertainment lawyer with Querrey & Harrow Ltd., in Chicago, Illinois.
Because online video transcends geographic borders, explains Rubin, problems with online video marketing can be compounded by a multiplicity of laws — not only state, but federal and national, as well.
We spoke to Rubin about common online video legal issues, as well as basic information that online marketers should know to protect their video assets and their reputation.
6 Pressing Legal Issues for Online Video Marketers
1: Copyright Infringement: A marketer can infringe on a copyrighted work in a video even if it’s done innocently. Here are some common scenarios where online video inadvertently includes copyrighted works that could result in an accusation of infringement:
- A music soundtrack: Marketers can be especially careless about the use of music in a video, believing that the use of a few bars can’t result in liability. It can. Or, they might commission music similar to a song they want in order to avoid paying a licensing fee. However, the resulting composition may be too close to the original work, resulting in an accusation of infringement.
- A painting visible in the background
- A stock photo used without license for online video distribution
- A short quote
2: Right of Publicity: A number of states have passed laws that prohibit the use of a person’s name or likeness for advertising or purposes of trade without their advance written consent. Some marketers feel that this only applies to famous personalities, but that is not generally true. Even creating an animated or cartoon character that is highly reminiscent of a famous person, or disguising a picture of that person by obliterating a uniform number or cap, can lead to trouble. One common online video infringement is featuring either a celebrity or non-celebrity in a video that endorses a brand without getting written consent or some contractual arrangement.
3: Right of Privacy: This occurs when marketers wish to use real people, or people whom others can identify. This right differs from the right of publicity because it deals with protection of areas of a person’s life that the public simply doesn’t need to know about. Marketers who wish to use a real person to illustrate a product’s quality or versatility need to first obtain permission for the exact proposed use. If they don’t, the person can claim that he or she either didn’t gave permission or gave permission for a limited use which didn’t cover the video in question.
4: Defamation: This is the communication to a third person of a false and damaging statement about someone. A marketer can defame another person by making a false statement or repeating a false statement made by someone else. Quoting someone else is no defense. This issue is complicated by the fact that what one person feels isn’t insulting may be highly offensive to another.
5: Trademark infringement: Using another company’s trademark without permission in an online video carries certain risks, and using that trademark for comparative purposes can multiply those risks. Featuring a trademark design that looks similar to another company’s trademark can lead to consumer confusion. Another potential liability is using a competitor’s trademark to create a negative image. That might be subject to scrutiny by the Federal Trade Commission and even a lawsuit by the competitor.
6. Disclosure and Fraud: The Federal Trade Commission issued disclosure guidelines in 2009 meant to help the public by listing items that advertisers should take care in implementing. Among those guidelines are rules relating to unfair, deceptive, or fraudulent statements; claims of free goods; use of disclaimers; and substantiation of claims. It’s important to disclose any material relationships between an advertiser and those making endorsements on-camera.
5 Tips for Legal Video Marketing
As tempting as it is to go “edgy,” online video marketers should always act with a sense of ethics and responsibility in their campaigns. Here are five tips for staying legal:
- Take extra care when preparing online video marketing material. Understand that your work may be viewed by an unintended audience, some of whom may take offense at statements you make.
- Think before you shoot. When referring to people or to a situation that involves identifiable people, ask yourself whether or not you would take offense at the reference. Then ask yourself again, keeping in mind that others could be more sensitive.
- Check your facts. When quoting statistics or the results of a survey, be sure your facts are substantiated.
- Think of your competitors. Your competitors would love you to cross a line so that they can publicly challenge your video and create bad press for your company. Avoid crossing that line while still making the points you need to make.
- Consult with an attorney. Your videos will be online for a long time, so have them reviewed prior to posting by an attorney who knows intellectual property, internet law, and possibly entertainment law. A review shouldn’t be expensive, and could prove a wise investment.
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