I recently interviewed Daliah Saper, Intellectual Property and Internet Law attorney, about what businesses and other professionals who are doing online video need to understand about the potential legal issues. We also cover the legal consequences of using someone else's work without getting authorization, a few key legal terms to remember with online, and what criteria to look for in an attorney who "gets" online video.
The Basic Legal Issues with Online Video
Grant: Daliah, what would you say are people's general understanding of the legal implications with online video? I see a lot of stuff out on the Web where I think to myself, don't they understand what the laws are and do they really think they can get away with what they're doing?
Daliah: We need to first break down the issues. We have copyright infringement issues, trademark infringement issues, defamation, and right of publicity. You get a mix of all of those in most lawsuits. So with respect to copyright, you can be mixing things in your video that don't actually belong to you. You can't use other people's music, or their artwork or their own movies and videos – in your own video.
Legal Consequences for Online Video Infringement
Grant: So what then are some of legal consequences? I'm sure there are a lot of people out there who still think that, even if they do get caught, there's nothing really bad that can happen to them.
Saper: Well, if I find out about it, and I'm sufficiently upset about your use of my song, or other work in your video; then I have the opportunity – or the right, I should say – to file a copyright infringement suit. Assuming I've already registered my work with the U.S. copyright office, I can get a minimum of $750 up to $150,000 in statutory damages. That's a lot of money. Overall, it's unlike other areas of the law, which fall under traditional lawsuits. If the plaintiff does it right, then they can also get attorney's fees and (punitive) damages.
Grant: Let's also add that someone is using someone else's copyright or copyrighted work for their own commercial use; or, something where they have a clear business purpose. At the very least, all that work you put into it is going to be taken down. (If you're doing it for a client, perhaps then the client could demand their money back or sue you as well.) In some areas, if you really don't know what you're doing, you can even be open to potential criminal charges. We're seeing that happen more and more today.
Understanding "Derivative Works" in Online Video
Daliah: Let's also use an example of a "derivative work." If I wanted to make a movie based off a poem that I read; or a piece of artwork, or a sculpture. That movie is a derivative of that sculpture. So in order to make the movie, I would need the permission from the right owner of the sculpture, the video, the song – even though I would own the end product; I would be the rights-owner in the final motion picture. The lines do get blurred sometimes, and that's when you would need an attorney to review the nuances of the licensing terms for you.
Legal Difficulties and Legal Opportunities
Grant: Is it an increasing challenge for both attorneys and business professionals to keep up with the laws that may pertain to online video? I mean, with the laws around technology and "new media" evolving, with the culture changing around it, and just the sheer increase in numbers of how many people can now do online video and reach large audiences – does this become something for an attorney who might normally be a specialist in intellectual property law, that they now need to also regular follow up on all of these things?
Daliah: Well, what that lends itself to is those "fair use" defenses, which can touch on the commercial nature of that video. Public opinion, in context, will play itself into a fair use defense. For example, you can say you're just making commentary about something. Everyone mashes up songs and does something new in this context, too. So, an attorney has to understand what's the context. That also means that if an attorney is not themselves on Facebook, Twitter, YouTube (or other popular areas of social media), and if they're not tweeting or otherwise using those mediums in some way, they will have a tougher time figuring out an analysis to show that there was a purpose or a better purpose for that person's argument of fair use.
Choosing an Attorney who Gets Online Video for Business
Grant: That's a very good argument for what someone's criteria should be in selecting an attorney for these types of issues. Is the attorney actively participating these online spaces themselves? Not only will they themselves need to be familiar with the online video and social media culture; but like you say, they can be better off to make an argument that protects their client. Take yourself as an example: You're already in Facebook, Twitter, and LinkedIn. When it comes to video, your own website at features many videos of your own seminars at your law office in Chicago, plus you have a video channel on a partner site.A video used to be embedded here but the service that it was hosted on has shut down.
Yes, and I use them both for personal and business purposes. We also review social media campaigns for a lot of clients. We have advertising agencies that ask us to review Facebook applications that they've created, or a contest that they're debuting on Facebook. [Video sharing sites and social media sites] rules about how you can conduct business on their sites. So, when you go on a social network for business purposes, you should first understand the terms on that site, especially before releasing the content out.
A Legal Guide to Commercial Online Video – Has it's Time Come?
Grant: That's the key thing now for doing online video for commercial purposes – get a basic legal education. It takes making people aware of these issues we've touched on, and speaking on their level. Do you think some kind of guide should be out there for people who can learn just what are the issues? How does this relate to what I want to do commercially if I get involved with online video? And importantly, what do I need to consider and ask if I'm going to be working with an attorney?
Daliah: I think the problem is that there is so much information out there. Yes, someone could spend hours upon hours of compiling that information, they could find what they need online, but it would require a lot of discipline. Now a guide, with some straightforward information like, this is what you need to know about trademark law, this is what you need to know about copyright law, and defamation law, as it applies to your use of online video – I think would be very helpful for people to have.
Thanks to the video production company, Chicago Video Works for their extensive work on shooting us at their studio with their virtual set!