“The more views you get and successful you become, the bigger target you become for copycats and infringement claims. If your online presence is growing considerably, think like a professional to protect yourself.”
Every day, DJs, athletes, entertainers and influencers broadcast live on Instagram, YouTube and other similar channels. Whether you are a professional entertainer or just connecting with friends and family, broadcasting and sharing content online raises many legal issues, including intellectual property, publicity rights, commercial speech, and contractual terms of service. Accordingly, digital content creators should be cautious with what they publish. In this article, we briefly explore these topics, and provide some Dos and Don’ts for avoiding legal trouble in the United States when sharing content online.
Terms of Service
When you sign up for any online service or platform, you likely contractually agree to their Terms of Service, through which you agree to license a host of your legal rights (including copyright, trademark and publicity rights) to their company and “affiliates” with respect to any content you upload, so that it can be shared and viewed by them and others users on their platform(s). You also represent to the company that you have all necessary legal rights to any content you upload or live stream, including permissions from third parties, and you agree to “indemnify” (i.e., reimburse) the company for any legal expenses they have to pay resulting from your breaches of those representations, including unintentional ones.
Whenever someone creates an “original work” (such as a Podcast or napkin doodle), certain exclusive rights automatically vest in the author or owner by law (such as the rights to copy, distribute, reproduce, sell and create “derivative” works) even without any federal registration or formal copyright notice.
While the life of a copyright varies according to when the material was first created or published (according to a patchwork of amendments to the U.S. Copyright Act); generally speaking, for all works created on or after January 1, 1978, copyrights survive for the life of the author plus 70 years. After that, the work falls into the “public domain” where it is free for all to use. Practically speaking, this means you should assume that any content you come across, and especially anything that seems like it was created within the last 40 years, is protected.
Just because something is protected by copyright doesn’t necessarily mean you can’t discuss it or even use small portions of it in any way online. Under certain conditions, it may be considered “fair use” for you to use it in a reasonable manner (not illegal), even without the owner’s permission. Common examples include (some) news commentaries and parodies. Copyright fair use analysis depends on four factors that are written directly into in the Copyright Act: (1) the purpose and character of the use, including whether it is of a commercial nature, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work. This analysis can get tricky, as is best done by an attorney, who regularly handles intellectual property “clearance” issues.
Practically speaking, this means that if you derive money from your use of another’s work, directly or indirectly (e.g., you generate income from your YouTube or Instagram account, or your work is considered a general marketing material), that would weigh against fair use but would not necessarily mean infringement occurred. Fair use may also be more easily achieved with works that involve less effort to create than others (e.g., a candid photograph versus a staged photoshoot), or are primarily nonfictional rather than fictional in nature. You also generally cannot use the “heart” of someone else’s material, because then no one needs to seek out or pay for the original. Similarly, the more of another’s work that is used (e.g., playing time of a song), the less likely it will be considered fair use. So . . .
Don’t: use too much (for bigger things). If you play someone else’s music or video, keep it short (and don’t steal the “heart” of the material). Otherwise, you may need to purchase a license to use or share it online. Some services, such as YouTube, may automatically block your content if they detect it could include someone else’s material, or contains too much of it. If this happens, it doesn’t necessarily mean you have infringed, but the company is just trying to protect itself (and you). Likewise, just because your content doesn’t get blocked doesn’t mean you’re in the clear either. If it feels like you should be paying for content you’re sharing, you probably should. Also, giving a “shout-out” or other credit to the author or copyright owner is not a defense to copyright infringement. So be careful.
Do: get a license (for smaller things). If you can’t keep it short (because the thing you are sharing is already short), or you want to use a significant amount or share the “heart” of the material, get a license. While it may be easier to get away with only posting a few seconds of a long song or video; funny images (e.g., “memes”) and short videos (e.g., TikTok) don’t exactly lend themselves to only being shared in snippets. For those sorts of all-or-nothing things, you will probably need a license in order to share it (unless you are protected by your platform’s Terms of Service), or just find something else to share.
Don’t: repost to a different platform. TikToks were made to be shared, but only on TikTok. If you share or repost someone else’s content on the same platform that they posted it to, and using that platform’s feature designed for that exact purpose (e.g., retweet on Twitter), that is likely fine as it is within the scope of that platform’s Terms of Service, which the copyright owner ostensibly consented to when they posted it on that platform originally. But, don’t copy or incorporate that content onto another platform (e.g., Instagram) without the copyright owner’s permission. That would probably not be protected by the first platform’s Terms of Service.
Do: link instead of embed. Providing a hyperlink to content contained on another platform is totally fine. Embedding or incorporating the actual content on a different platform, however, most likely is not (assuming neither the “public domain” nor “fair use” apply). In some instances, it may be fair use to include an image with the hyperlink (e.g., if the image is merely an insignificant screenshot of a long video), but in other instances it may not (e.g., a copy of a professional photograph).
Don’t: change or conceal any credits. The Digital Millennium Copyright Act (“DMCA”) prohibits, among other things, the intentional removal, concealment or alteration of any “copyright management information” without approval from the copyright owner, as well as the intentional provision or distribution of copyright management information that is false. This includes the names of authors and their online “handles,” the titles of works, and practically any other “personally identifying information” about the author or copyright owner that is included with or embedded into a work – such as someone else’s YouTube video or social media posts. So, if you share or use someone else’s online content, don’t change or hide their credits. Feature them prominently, and remember: don’t use too much or get a license. (Also remember: just because you give them credit, doesn’t mean you have their permission to share on another platform, or to commercially exploit their “likeness,” as discussed below.)
Do: register your works with the U.S. Copyright Office within 90 days. Okay, maybe not everything, as those fees can add up. But your best and most popular works, which you think others may try to copy, at least register those ones quickly. This is because, if you do ever decide to sue someone for copyright infringement, the remedies that would be available are drastically different depending on when you filed your copyright application. More specifically, regardless of when it is filed, if infringement is found, the copyright owner will be entitled to recover its “actual damages” (typically a reasonable royalty fee) plus disgorgement of the defendant’s profits resulting from use of that work. However, if the work was first registered (or application filed) prior to when the infringement occurred, or within 3 months of the work’s first publication, the copyright owner can (but not always) also recover its attorneys’ fees, and instead of actual damages and profits seek up to $150,000 per work infringed. Practically speaking, many copyright lawsuits don’t make much financial sense unless this occurred. So file copyright applications for your best material within 90 days of the time you share it (if you really want to protect it)!
Statements (and Omissions)
Don’t: mislead your audience. False or deceptive advertising can get you fined or sued by the Federal Trade Commission (“FTC”), which regulates commercial speech in order to protect consumers, including statements and suggestions made online. For example, you cannot advertise something as 50% off, if you’ve never actually sold it at 100% value. The FTC has a guide about what is and isn’t allowed with online marketing and sales, which is available here.
Do: disclose endorsements and affiliations. Even stuff you received for free in exchange for an “honest” review. The FTC also has a guide on this topic, “Disclosures 101 for Social Media Influencers,” which is available here. If you want to work with other brands online, you should read it.
Don’t: make false statements about third parties. Or their goods and services. Doing so can result in legal claims ranging from defamation, unfair competition, and other personal or business injury claims that can be really expensive to fight, even with minimal evidence of actual harm. It’s fine to give an honest review based on your actual experience that is negative, or tell others what you “think” really happened to Carole Baskin’s husband on your Podcast, but be careful when making assertions (and inferences) of “fact” versus “opinion” when speaking about others — especially online where they are much more likely to be seen or heard by those persons (and recorded). It is much safer to phrase negative statements about third parties or their goods or services in terms of your “opinion” or “belief,” rather than “fact.”
A trademark is any word, phrase, symbol, or design that identifies and distinguishes the source of the goods or services of one person from those of others.
Don’t: prominently feature third party trademarks. Unless they have endorsed you, or you’re providing an honest review of their goods or services. Even if you think the trademark use is insignificant (inadvertent or otherwise), if the trademark owner isn’t happy, you could find yourself in expensive legal hot water, for claims such as trademark infringement and dilution by tarnishment (i.e., reputational harm), even if you’re ultimately found by a court of law to have done no wrong.
Do: get a trademark. You’re an internet star now (or on your way). Create a distinguishable brand you can build on, and protect yourself from imposters and imitators.
Do: a trademark search. To make sure no one else is already using a similar trademark (federally registered or not) to the one you want to use in connection with similar or related goods or services, in any medium or forum (e.g., whether they use the same social media platforms as you or not). You don’t want to be accused of, or sued for, trying to ride someone else’s coattails. You should have a trademark professional do this for you, as a simple google search won’t cut it.
Don’t: just start filming. While you may want to live stream from a quasi-public place, such as a grocery store (as part of your YouTube review channel), and while the store may want you there, they may not want or allow you to record inside for a number of reasons (e.g., to protect themselves from personal injury claims, and to protect other customers who may be annoyed by your filming). Some stores may even post signs prohibiting filming or photography inside. Signs or not, you may want to ask for permission, and especially if you will be doing a considerable amount of filming there, or generating revenue from that content (directly or indirectly). While these places are generally open to the public, they are in fact privately owned, and they can make you leave (and even ban you). Additionally, depending on how prominently their trademarks or trade dress are featured (i.e., how recognizable their store or brand is within your video), as mentioned above, if they aren’t happy, you could find yourself in hot water . . . whether you’re right or wrong. So, be careful with what and where you live stream.
Do: get a signed release. Technically, oral permission is fine, but written permission is always better (and could mean the difference between a long expensive lawsuit and none at all). Get a signed release from anyone whose “likeness” is prominently featured or readily identifiable, in any manner, in your content, unless you are just re-sharing content on the same platform, subject to its Terms of Service. This is especially important if you derive income from your content (directly or indirectly). And remember, intellectual property (e.g., copyright and trademark) and publicity rights are different and exist simultaneously. You may need to separately “clear” both hurdles in order to share certain content.
Use Common Sense
Don’t: commit crimes. A guy recently shared a video online of himself licking the inside of an ice cream container and putting it back on the store shelf. (As reported by CNN.) He got millions of views, but was also sentenced to 30 days behind bars. Don’t be that guy.
Do: seek assistance. The more views you get and successful you become, the bigger target you become for copycats and infringement claims. If your online presence is growing considerably, think like a professional to protect yourself. You may want to form a company, or two or three, through which you provide online content, merchandise, or other goods or services, to shield yourself from personal liability in the event you do get sued for some reason relating to your online presence (it happens every day, and is more likely to happen the more popular you become). You may also need help with other issues, such as drafting and negotiating contracts, so that you can work with other brands and content creators with confidence, as legal issues tend to be more complicated and unapparent than they might otherwise appear to untrained practitioners.
Live streaming and sharing content online can be fun and lucrative, but is not without risk. As with any industry, market growth leads to increased competition and of course, legal claims and issues. So have fun out there and be careful.