“Fair Use” Legal Update – What Online Video Professionals Should Know

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adler-davidListen to my podcast interview with intellectual property and new media attorney David Adler to hear about recent developments with a popular case today involving the battle between fair use and copyright protection, and what it can teach us about detecting and preventing clear-cut copyright violations in online video marketing.

Why video marketers need to understand the law

Here at ReelSEO I’ve done a sizeable amount of coverage on legal issues with online video marketing, especially with copyright issues. That’s because there are numerous instances today of how companies take other’s copyrighted video work and use it to promote their own endeavors on the Web. Why? Because web video is incredibly easy to distribute, it is just as easy for others to copy and lift. Once you put it out online, you lose control of it.

However, what many people fail to realize is that just because you can lift a video from the web, it doesn’t mean you have a legal right to use it any way you want for your own purposes, commercial or non-commercial. And if you’re lifting this content from any large business or organization, chances are you may find yourself embroiled in a lawsuit!

Copyright violation example – Obama’s “Hope” picture

AP Photo/Manny Garcia/Shepard Fairey
AP Photo/Manny Garcia/Shepard Fairey

It was recently reported by the Associated Press that the artist, Shepard Fairey who made a very popular campaign image for then-candidate Obama, admitted to basing his artwork on an AP photo with an exact likeness. The AP considered Fairey’s portrait to be a violation of it’s copyrighted material (the photo), which showing side-by-side, is an exactly likeness. Fairey had his portrait and image used for both political campaigns and commercial use.

As the AP reports, this distinction is critical because “fair use can sometimes be determined by how much of an original image or work was altered in the creation of a new work.” If the artist didn’t need to significantly alter the image he used — in this case the solo shot of Obama — then his claim could have been undermined. Fair use cases also may consider the market value of the copyrighted material and the intended use of the newly created work.

What made matters worse for the artist is that he employed the legal support of Stanford University’s Fair Use Project to sue the AP! So once it was learned that the artist lied about which AP photograph he used for his own work (not to mention attempting to destroy other evidence to bolster his own fair use case and cover up previous lies and omissions), his legal team dropped him and he was forced to issue an apology. As a result, he could be sued by the AP for monetary compensation as well.

Interview with copyright attorney David Adler – What online video marketers can learn

Taking the example of the Obama “HOPE” poster, David provides us with answers to some fundamental questions on fair use and online video marketing in my podcast interview:

  1. How likely is the issue of Fair Use going to be one that applies to producers and marketers of online video today? In the future?
  2. What are some scenarios of how businesses, organizations or individuals may be incorrectly claiming “Fair Use” protection for their own use of others’ copyrighted video, in their own online marketing practices?
  3. What should a company, organization, or individual who is producing and promoting video for the Internet, look for in an attorney to help them out with understanding the issue of Fair Use?

Additional resources on fair use law and online video marketing

I encourage you to check out my video interview with author and ReelSEO colleague Daisy Whitney and her eBook which specifically covers fair use policies with internet media.


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