Intellectual Property Law Attorney Marcelo Halpern gives us a “legal video education” on why most online video professionals and enthusiasts today have big misconceptions about what they are and aren’t allowed to use with what they find or put out on the Internet, and the real damage it’s causing businesses.

I caught up with Marcelo after his presentation with the Practice Law Institute (PLI)’s live seminar in Chicago, Understanding Copyright Law in the Data Era (and also available now in course handbook format including presentations.) Marcello presented on “Fair Use and Permissions,” which he’s been generous to include for us his full presentation below.  I talked with Marcelo about what are the latest issues involving copyright law and fair use that online video creators, marketers, and net video professionals in general should be paying much more attention to – without risking unnecessary takedowns, lawsuits, fines, and the loss of their professional reputation and business.

For some background on what exactly is Fair Use and why it’s a seriously important legal consideration for both professional marketers and video enthusiasts, you can check out Marcelo’s presentation on Slideshare (included here below), or the Stanford University Libraries’ Copyright & Fair Use webpage. For much more in depth coverage around online video, simply type in “fair use” in the ReelSEO website search box.

IMPORTANT NOTE: The following content is for general information purposes only. It is not to be confused with, or substituted for, any legal advice or counsel. For that we strongly recommend you consult with a licensed attorney! 

Copyright Law and Fair Use in Online Video

Marcelo, is there really any difference in how you define or apply “Fair Use” protections to online video creations, as opposed to media in general?

I have two answers to that question. The technical legal answer is “no.”  Fair Use is technically supposed to apply the same way to everything.  The real answer, however, is that fair use does apply differently in different media, because of the way that the medium uses the underlying material.

Say for example when you’re looking at written material – books and articles and things like that – how you might use a piece of the underlying material in your secondary work? Well that’s going to be very different then how you would use it in online video – where you’ve got audio and video, images and sound, along with the words that are being said. So you can see how the analysis of fair use with online video gets more multi-dimensional then it would if you’re looking at pure text.

So when you’re looking at online video, part of where the Fair Use analysis is going to go, is what exactly are you using.  Are you using both the image and the audio in your secondary work?  Or are you using the image but changing the audio? Are you using audio from a clip but not the video itself? It’s how you are combing the different multimedia elements afforded to video, online video, which will go into the analysis of whether or not what you’ve done is Fair Use.

Why do you think so many online video professionals and serious enthusiasts still fail to understand what’s “Fair Use?”

Well I think there’s a lot of misperceptions about what exactly is fair use in the online video world and in general in the internet world – where you have a lot more sort of new entrants, sort of non-traditional entrants, into the field.  Publishers, movie makers, people in the more traditional media world have come up through the process with a lot more awareness of what constitutes Fair Use. The difference with online video is, because it can pretty much be done by anybody, anytime, anywhere, with a cell phone or what have you, they don’t tend to come up through the ranks in the educational process in the same ways that they do in the more traditional organizations.

So as a result, and because the Internet and the digital technologies make it so easy to re-use other people’s materials, I think people have developed a real misconception about what you are and are not allowed to use with information or materials that you find on the internet.

There’s still a tendency with most people to think, “Well, if someone posted a video on a website or put it up on YouTube, then it’s fair game for me to go in and use it.” The reality is it’s just not. I think with the huge increase in online video (including for business and professional purposes), it’s even more important for people to get a handle on it. More and more organizations are now starting to pay attention to what other people are doing with their videos, and you want to avoid getting into legal battles that can be very costly and time consuming, and ultimately best avoided. That’s why you as a professional need to now have a good idea of what you’re allowed to do and not allowed to do with any online video activities you’re getting yourself or others involved in; and how to raise an appropriate defense if what you’ve done is legitimate.

What is the biggest copyright violation source today with online video you’re seeing?

That would be the ongoing litigation of people posting commercial product on YouTube without permission (of the original copyright owners).

In most cases on YouTube, it’s not a Fair Use issue because most of the time people are just posting it because they want to make it available to people; and they’re not modifying it, they’re not doing anything with it, they’re literally just taking a copy and putting it up online, which is not usually conducive to a Fair Use defense.

Why Arguing Fair Use with Commercial Online Video Can Be Difficult

What’s a big controversy you’ve found on YouTube over what constitutes fair use with commercial videos?

People who use professional, copyrighted music in the background to a more commercial, commercially oriented movie that they make and they want to put a soundtrack to it and use pieces of commercial music and things like that, starts to look a lot more like a serious issue then the dancing baby with the Prince song.

It is always more challenging for making a Fair Use argument when you are doing an online video that is for professional purposes than for recreational use, when you are taking someone else’s copyrighted material without their permission?

I think the answer is yes, for a couple of reasons.  One of the elements of the Fair Use argument – the question of whether something constitutes Fair Use – is whether the use itself was commercial.  That relates back sort of to the underlying premise of copyright law, that it protects the author’s ability to make money off of their creation; and if someone else is making money off of their creation then they can stand up and take notice of that.

So the more it appears like the use of the video is of any commercial use: It’s:

  • More likely to get attention and have a claim filed against it, and;
  • It is potentially harder to show Fair Use if in fact you are using your video in commercial fashion to promote your brand, product, message,  or what have you.

So it does tend to be a little bit more difficult; but even more so it tends to make you more of a target.  People have a lot of sympathy for the woman with the dancing baby sued by the big music label; but people have a lot less sympathy if someone used that same song in a commercial for their product; because it just looks like it’s more taken advantage of the copyright owner as opposed to an incidental, “who cares” kind of Fair Use.

What do you find to be the challenges with getting businesses and professionals to be willing to be properly aware and educated about copyright law and Fair Use?

I think it’s two fold: One is again, because online video has created an enormous new industry with a lot of new players who don’t necessarily go through sort of the formal upbringing that the executive would have gone through in the process through a studio structure.

And two, you just have a lot more people to reach. You have people who come with very different backgrounds and go into the video industry without a more formalized structured kind of education – they can just pick up a camera and go do it.  And, there are also a lot of very talented people who make very good videos, but they don’t necessarily have the education on the business aspect of that, where they would have picked up some of the issues around Fair Use.

So you’re trying to reach a lot more people. You’re trying to reach people who are spread out.  They’re not in a traditional company where you know you can reach a lot of them at once. It’s very easy to walk into Universal Studios and say we want to teach your employees about Fair Use ,versus trying to get to identify you know thousands of independent film makers who have no real corporate structure around them and try to educate them about Fair Use.

It also makes it much harder to police that on the side of the copyright holders for the same reason, there’s just that many more people to look for.  I think also, again it’s the educational component of people understanding what they’re doing and looking at the copyright issues and understanding that there is, you know that Fair Use may not be what they think it is.

Do you think YouTube is doing a good job with educating its own users about Fair Use?

Well I think sort of the underlying question is really, does YouTube actually have an obligation to do this? They certainly have a business motivation to do it; because if people are more educated about Fair Use, it helps YouTube because they have fewer take down notices and so forth.  So they do have a business stake in doing it, but I’m not sure they actually have a legal obligation to educate their users in the first place. And arguably, if they don’t have any obligation to do it, then anything they do is better then nothing.

But they do, they have made that choice; and they have for business purposes and legal purposes decided to take it upon themselves to educate their user base to some degree about Fair Use. Part of the issue I think that they have is the nature of the meaning of Fair Use, itself.  They can put as many videos and as much information as they want about Fair Use on the site and make it available to the users. But the real the question is, will the users actually watch them?  They can lead the horse to water, but will it drink?  And I think the reality is that a lot of people just don’t.  They look at it and go “whatever, I’d rather look at the funny stuff, people doing crazy things, then watch some video about Fair Use, what do I care?”

So the only way to really force that level of education on YouTube users, would be to force people to go through that process before they can post something or something like that.  Now I haven’t studied deeply what they do. I know that they have some element where if a video triggers a takedown notice or something else, YouTube will send the account holder a link saying they need to take an online copyright course, or that sort of thing. YouTube can always disable accounts of certain people if they get to be a problem; but YouTube obviously don’t want to do that, because that’s not their business.

About Marcelo Halpern, Intellectual Property Attorney…

Marcelo Halpern is a partner in the Chicago office of Latham & Watkins LLP and is Global Co Chair of its Technology Transactions Practice Group. His practice focuses on representing and counseling corporations, non-profits and governments in connection with technology and intellectual property transactions.

Mr. Halpern chairs the Practising Law Institute’s program on Understanding the Intellectual Property License and is a frequent speaker on topics of technology and intellectual property law. He also serves on the Board of Editors for The Internet Newsletter and for The E-Commerce Law Report.

Mr. Halpern has been recognized as a leader in his field in Chambers’ USA Guide to Leading Business Lawyers, The Best Lawyers in America and Illinois Leading Lawyers Network. He is also recognized as a leading lawyer and recommended for his “well-reasoned counsel and balanced analysis” in the Legal 500 2011 guide.

Read more of Marcelo Halpern’s bio at Latham & Watkins website.