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Online video law, copyright, and fair use

Depending on the source material being used for your online video production company, there’s a chance you might be treading the waters of copyright infringement. Don’t get caught breaking a video law. Below is a Q&A with Marcelo Halpern, an intellectual property attorney, that features some important tips for making sure your video isn’t stepping on anyone’s legal toes.

Why Arguing Fair Use with Commercial Online Video Can Be Difficult

What’s a big controversy you’ve found on YouTube over what constitutes fair use with commercial videos?

People who use professional, copyrighted music in the background to a more commercial, commercially oriented movie that they make and they want to put a soundtrack to it and use pieces of commercial music and things like that, starts to look a lot more like a serious issue then the dancing baby with the Prince song.

What is the biggest copyright violation source today with online video you’re seeing?

That would be the ongoing litigation of people posting commercial product on YouTube without permission (of the original copyright owners).

In most cases on YouTube, it’s not a Fair Use issue because most of the time people are just posting it because they want to make it available to people; and they’re not modifying it, they’re not doing anything with it, they’re literally just taking a copy and putting it up online, which is not usually conducive to a Fair Use defense.

Why do you think so many online video professionals and serious enthusiasts still fail to understand what’s “Fair Use?”

Well I think there’s a lot of misperceptions about what exactly is fair use in the online video world and in general in the internet world – where you have a lot more sort of new entrants, sort of non-traditional entrants, into the field.  Publishers, movie makers, people in the more traditional media world have come up through the process with a lot more awareness of what constitutes Fair Use. The difference with online video production company is, because it can pretty much be done by anybody, anytime, anywhere, with a cell phone or what have you, they don’t tend to come up through the ranks in the educational process in the same ways that they do in the more traditional organizations.

So as a result, and because the Internet and the digital technologies make it so easy to re-use other people’s materials, I think people have developed a real misconception about what you are and are not allowed to use with information or materials that you find on the internet.

There’s still a tendency with most people to think, “Well, if someone posted a video on a website or put it up on YouTube, then it’s fair game for me to go in and use it.” The reality is it’s just not. I think with the huge increase in online video (including for business and professional purposes), it’s even more important for people to get a handle on it. More and more organizations are now starting to pay attention to what other people are doing with their videos, and you want to avoid getting into legal battles that can be very costly and time consuming, and ultimately best avoided. That’s why you as a professional need to now have a good idea of what you’re allowed to do and not allowed to do with any online video activities you’re getting yourself or others involved in; and how to raise an appropriate defense if what you’ve done is legitimate.

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