The Essential Legal Guide for Online Video Marketers

Posted by intro60.com on Jul 7, 2012 in Email marketters, Online Video Marketing | 1 comment

BY GRANT CROWELL

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.