User generated video exists everywhere. It is found on social media, online blogs, YouTube, Wikipedia, the list goes on and on. Using user generated video in marketing can be a great way to build authentic relationships with consumers. As 92% of people trust user generated video content over traditional advertising, more and more marketers are searching for ways to profit from it.
With the evolution of online publishing platforms, the means of distributing copyrighted video content no longer lies solely with the content maker. Now anyone has the ability to collect user generated content and publish it directly on their website or use it in an advertising campaign. While before, companies were content with passively hosting user generated content, now companies are looking to commercialize and create new works based on this content.
This raises a host of legal issues and questions for companies looking to incorporate user generated video content in their advertising campaigns. Luckily, navigating through the legal issues with user generated video does not have to be difficult. Here are 5 legal issues that may arise when using user generated video and 5 tips to minimize your risk.
5 Legal Issues with User Generated Video
1. Ownership issues
U.S. copyright law limits the unauthorized posting of user generated video content online. This could be posting photographs, video clips or music produced by someone other than the user publishing it without getting their approval.
Both the website user and operator may be liable for copyright infringement under the Digital Millennium __Copyright Act. However copyright owners tend to sue only the website operator rather than the user, due to their perceived “deeper pockets”. Online service providers have immunity to liability where they merely serve as a conduit, or did not know about the infringing activity. So if you want to distribute or reproduce video content, permission from the original source is always needed.
2. Speaker-Related Actions
A number of legal issues with user generated video can be attributed to defamation restrictions. A user who posts video content containing false or misleading statements to a person’s discredit on a website may constitute defamation under the Communications Decency Act. In the past, website operators have only be liable where they are the author or creator of the content. For example, Facebook will not be liable where a member posts defamatory statements as they are not the author of the video content and are merely a neutral site that allows third parties to post to their website.
3. Privacy and Publicity
Using user generated video content without permission can also give rise to a number of privacy issues. In Chang v Virgin Mobile, a teenage girl’s parents sued Virgin Mobile and Creative Commons, Inc. for libel and invasion of privacy.
Virgin took a photo of the girl from flikr.com which was taken by her youth pastor at a church event. The photo was posted under the Creative Commons license which allows for commercial use of video content without permission. Virgin used the photo in their billboard ad campaign accompanied with the text “Dump Your Pen Friend” without gaining permission from the youth pastor or the girl. This case raises problems with user generated videos where not all people involved have given consent.
Posting user generated video content that contains a registered trademark, or a trademark that is confusingly similar, could amount to an infringement under the Trademarks Act. Trade mark issues usually arise where the website operator is involved in the display of the trade-mark on their site. Infringement is less certain where the website operator is merely a venue that allows third party users to post information without the approval of the operator.
5. False Advertising
Using user generated video content in online contests can raise legal issues surrounding false advertising. False or misleading representations of commercial products are regulated under the Trademarks Act. While anyone who posts misleading content online may be liable under these laws, it is unclear as to whether the user or web operator would be responsible where the claims were posted at the operators’ request.
Subway sued Quiznos and iFilm for running a user generated video competition that invited the public to review Quiznos’ sandwiches as being superior to Subway’s. They alleged that the content contained false and misleading statements about Subway and that by airing the contents, Quiznos was in violation of the Trademarks Act. However the court could not find that Quiznos was not an un-involved provider and the two parties subsequently settled.
The Digital Millennium Copyright Act provides a safe harbor for the passive use of user generated content. Section 512 (c) of the Act makes website operators immune to damages where user generated content is posted without the authorization of the owners in the video. Such was the case in the case of Viacom v. YouTube.
The safe harbor defense becomes less likely to apply however in situations where a company takes user generated video content and re-purposes it to develop and advertisement. For example video content found on YouTube could be used and made available on the company’s own website, which could potentially raise a number of legal issues.
Similarly, the _Communications Decency Act _provides immunity to internet service providers who are publishers or speakers of third-party content. Section 230 extends immunity to a number of actions including defamation, negligence, breach of contract, invasion of privacy, misrepresentation among others.
Minimize the Legal Risks With User Generated Video
Knowing the legal issues with user generated video content is the first step to minimizing the risks involved. Developing strategies for your company to help deal with the commercialization of user generated video content is the next step to further minimize that risk.
Attempt to Fall Under a Defense. Work with an attorney skilled in intellectual property law and ensure you adhere to the strict guidelines set by the legal defenses. This is not always possible and relying solely on the legal defenses is not recommended.
Review the Terms of Service. If the user generated video content you wish to use is posted on social media, consider the Terms of Service of the platform and whether or not it grants rights to commercial use of the content posted.
Always Get Permission. Avoid legal issues with user generated video by directly commenting or privately messaging the user who posted the content. Link them to a very user-friendly license agreement. Be aware of the subjects in the video and whether the person who posted the content is able to authorize it.
Create Terms and Conditions. If the video is being collected via hashtag or through a HTML5 webcam API on your own website, make a short set of terms and conditions available alongside its promotion that enables the company to use any content posted.
Curate the Content. Flag that video content that may be high-risk, such as those including celebrity shots, minors, professional quality content, copyrighted material, watermarks, defamatory or illegal material.
In general, companies should seek to provide clear statements about their practices. User generated video content is subject to many legal protections, including copyright, trademark, defamatory, privacy and publicity rights of anyone involved in the video. The tips above should not be relied on without first consulting with a professional; however they collectively provide a good starting point for addressing the legal issues with user generated video content.
Disclaimer: All information contained in this article is for general guidance on matters of interest only. No information accessible on this page should be construed as legal advice.