Online Video Marketing’s Legal Issues – Interview With Jonathan Moskin

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moskin-jonathanReelSEO’s Grant Crowell interviews attorney and intellectual property expert, Johnathan Moskin, on what are the most important legal issues today with online video marketing, and what all businesses should educate themselves on before publishing and promoting their video content on the Web.

Jonathan is a Partner for White & Case LLP, and a featured panelist on the recent Search Engine Strategies Chicago conference for the session, Intellectual Property & Trademark Issues: What SEMs Should Know.

User-generated video content and competitive advertising

With the Viacom-YouTube lawsuit in legal limbo, I asked Johnathan to mention another legal case involving the distribution of user-generated online content. He cited the fast-food Subway-Quiznos lawsuit which was originally publicized early this year, where Quizno’s did a promotion encouraging its users to submit their own videos for comparative advertising purposes with respect to its fast-food rival.

“Some of those videos that were posted to a site under the auspices of Quizno’s were sufficiently negative as to provoke a lawsuit by Subway as to constitute false advertising, and that some of the materials were defamatory.” Says Johnathan.

As reported in the Internal Herald Tribune, “Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way. Subway is also objecting to ads that Quiznos itself created that show people on the street choosing Quiznos over Subway.”

The article presents the question, “even though Quizno’s didn’t make the insulting submissions, should it be held liable for user-generated content created at its behest?” Its an issue for smaller businesses to consider when they solicit videos from their own audience (including members, customers) that mention competitors, even whether the business solicits its specifically or not.

Shared legal issues between video and search optimization

Johnathan believes that SEO specialists aware of the legal considerations in their own field will have a general base for understanding the legal issues they will need to consider with promoting video strategies using SEO as well, “in that they have to be done in a fair manner, particularly if you’re trying to call attention to a video to promote your product, services or yourself, that you do not unfairly use the intellectual property of others.” He says.

“For example, by doing keyword stuffing including with other’s trademarks that the search engines already find objectionable and may de-list your site, plus what’s legally considered an unfair business practice.”

Legal tips for online video marketers

According to Johnathan, the main legal areas for businesses to be aware of with online video promotion should be on copyright law, trademark law, and false advertising.

  • Copyright – right of use. “If you’re going to create a video, clearly you need to have the right to use the materials substantively – i.e., the actual materials that are in the video that don’t infringe on the copyright of some 3rd party.” Says Johnathan.
  • Trademark law and false advertising “You don’t want to falsely represent the nature of the products or services of a competitor,” whether its your own company saying it or a user-submitted video. Also, “if you’re going to be referring to a competitor’s product, there are likely going to be trademark issues as well. And if you’re going to be promoting this video with search engine optimization tactics, then you want to be sure that you’re not misusing a competitor’s trademark in that context.” Says Johnathan

Legal counsel for online video marketers

Marketers and businesss should understand that all the same legal rules apply with online video content as with any other type of intellectual property usage, and that includes getting waivers and releases for the “materials” featured in the video content itself – be it people, music, buildings, or even physical locations. Consulting with an intellectual property (IP) attorney before shooting and promoting any video can save you from nasty legal entanglements that will have the opposite effect of what your video is supposed to accomplish for your business.


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