Video Marketing and the Law By Mark J. Rosenberg Videos can be a very effective Internet marketing tool. Yet, this tool comes with several hidden legal issues. These pitfalls can be avoided if the video marketer is aware of them and takes proactive measures. The most overlooked issue in video marketing is the right of publicity. This right relates to a person’s ability to control whether and how his or her name, likeness and voice are used. In order to avoid right of publicity disputes, affiliate marketers should have all persons appearing in their videos sign a release granting the marketer the right to use that person’s name, likeness, image, etc. in connection with the recording, display and distribution of the video. These consents must be in writing. That is because some states do not recognize oral consents even if the consent is recorded on video. Everyone appearing in the video should sign a release, regardless of whether the person is an employee, family or a friend. That way, if an actor has a change of heart after the video is taped or after it begins to be displayed, the marketer is protected. Otherwise, the actor could potentially bring a lawsuit for a monetary award and an injunction prohibiting the use of the video. Copyright law also plays a major role in video marketing. Preliminarily, in almost all cases, using video images copied
from YouTube or from a television network’s or a show’s Web site without consent is a copyright violation. While the basics of copyright infringement are usually obvious, the concept of copyright ownership is not. As a result, affiliate marketers are often not aware that just because they pay someone to create a video, they do not necessarily own the copyright in that work. In many cases, the person who actually creates the video is considered the work’s author and the owner of its copyright. In fact, everyone involved in the creation of the video, including the script writer, the director and the production crew may own a portion of the copyright in the finished video and possess the legal right to determine whether and how the video can be used. This issue can be avoided by having all persons involved in the creation of the video sign a work-for-hire agreement before production commences. These agreements are written contracts which specify that entity which commissions the video owns the entire copyright in it. Background music is an additional copyright issue in video marketing. This issue is often overlooked. Unless the video uses only original music created by the affiliate marketer, the marketer must obtain consent to use the music. Otherwise, there is a potential infringement issue. By employing these basic measures, affiliate marketers can avoid many of the legal issues raised by video marketing.
Mark J. Rosenberg is Of Counsel to Sills Cummis & Gross P.C. where a significant part of his practice focuses on legal issues relating to ecommerce, and he can be reached at mrosenberg@sillscummis.com.
4 | JANUARY 2010 | FEEDFRONT MAGAZINE