A pirate is an internet user who downloads the latest Hollywood blockbuster from a torrent site. A legitimate viewer is the individual who rents it from their local DVD store or watches it through their cable or satellite provider. In between these two extremes lies the befuddling convoluted complexity of video copyright law which not only flummoxes the online marketer but also some of the finest legal minds of this country. Video copyright law is as clear as the windshield of a mud bogger at the end of a race but it can still get online marketers into “a heap o’ trouble, boy,” so it behooves any brand that would even remotely consider placing video online to familiarize itself with the Pros and Cons (in other words, being a Video Pro will keep you from becoming a Penitentiary Con).
100% Originality Is the Best Defense
If you’re the type of brand that hires its own crew and shoots its own completely original video productions, you don’t have much to worry about when it comes to violating video copyright law. You are the creator and owner of the work therefore you can exhibit it anywhere you want without fearing nasty copyright violations. Keep in mind that it only applies if you are originating 100% of every aspect of the video. Even the slightest use of a short video clip or audio sampling will get you into that famous trouble heap. I recently fielded a question about an infomercial production: “Can we play a tune by Shania Twain on the sound track?” My reply: “Sure, if you don’t mind cutting a check for over $100,000 to her publishing company.” If you’re originating a video you had better make sure that every frame and every sound comes from you and you alone. That even applies to the visual elements on the video itself: A logo on a T-shirt can be seen as endorsement by that company and open you up to serious liability. That’s why you often see clothing logos blanked out on videos.
4 Basic Fair Use Factors
If you are thinking of using other, independently produced aspects in your video or exhibiting entire externally-generated videos, you had better familiarize yourself with the four basic factors of Fair Use as codified at Section 107 of the U.S. Copyright Act:
- The effect of the use on the potential market for or value of the copyrighted work – This is a critical determination as it basically asks: “Are you diverting the original work’s audience so that they could view your video instead of the original?” So if you’re integrating all of Gone With The Wind except for the credits crawl and 1:24 of Rhett dancing with Scarlett, you’re clearly draining the original’s audience.
- The purpose and character of the use – The key determinations are if the use is commercial or non-commercial (you’re a brand marketer, so that’s a commercial use) and whether the use is transformative rather than derivative. Using copyrighted content transformatively does not necessarily change the substance of the original footage but does something to change its essential meaning or message. So a straight insert in Adobe Premiere Pro does not transform, unless you are placing the imported footage into the context of criticism, historical review or some other aspect you can defend in court.
- The amount and substantiality of the portion used – This determinant dovetails well into the above, as the amount of external footage you use has an inverse relationship to its Fair Use. Making a legitimate point about your product by flashing Clark Gable stating “Frankly, my dear, I don’t give a damn” is going to be considered much more favorably than showing the entire Burning of Atlanta sequence.
- The nature of the copyrighted work – This is the element of least impact as it weighs factual, non-fiction content as being more innately Fair Use-able than fictional material marked by its creative origination.
The current state of online video copyright can best be described as a labyrinthine morass where online marketers should tread carefully. The best advice is always to save the legal headaches and go for full originality!
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