Welcome to Reel Legal — a new column about the legal matters that affect ad agencies, filmmakers, television shows and more — written by attorneys from Leavens Strand & Glover, a Chicago-based entertainment, media & IP law firm.
Mobile technology has blown up the IP and content creation universe. These days, anyone with a mobile phone can, and likely does, routinely publish photos and video across the globe in an instant.
As a result, the volume of quality visual content at our fingertips has exploded to a nearly incomprehensible level. If a producer wants to use a high quality image of a particular scene in their project, why would he or she spend time and money on equipment, travel and talent to create that image, when there are likely thousands of good options already online and available with the click of a mouse or flick of a finger?
Distribution models and release timelines for many video production projects have also been turned on their heads. Media creators are tech-savvy and driven to create a high volume of material to release quickly, and by any means possible. Many are not particularly informed about rights and clearances, or assume that anything online is “public domain” or can be freely exploited as “fair use”.
This reality of mobile technology has vastly expanded the legal risks in video production. When I get involved in my clients’ projects for online campaigns and broadcast shows, it is usually because there is some threatened legal action, or some distribution channel requires a legal analysis for insurance or distributor clearance reports.
If I ask producers about a particular third party photograph in their project, the conversation might go like these scenarios:
Me: “So where did the photo at 01:18 come from?”
Sally (Executive Producer): “I’m not sure, Joe put this together, and I told him not to spend any money. Joe?”
Joe (AP): “I asked Kris to find some good royalty-free options of a beautiful mountain scene with a cowboy. Kris, where did this one come from?”
Kris ((barely) paid intern) : “I Photoshopped from a couple of different stock photos we already had in-house. I found them on the shared drive. That’s OK right?”
In this case I still don’t know the original source of the photo. I do know we need to track down licensing information for at least two separate photographs and determine if the photos are also clear for the new project, and able to be altered.
Kris might also say: “I got that from my boyfriend Dave’s Instagram- he just went hiking out west and then posted that photo. He won’t care if we use it.”
This might be true, but just in case, Dave should sign a short, gratis photo license agreement. What happens when Kris and Dave break up, and he decides he does care now? He could try to recover statutory damages for willful copyright infringement.
In another scenario, Kris says, “One of my favorite reality stars tweeted that photo last week on a detox retreat. Doesn’t that mean it’s public domain?”
This is a common misuse of the legal term “public domain”. In a legal sense, material being in the public domain has absolutely nothing to do with the fact that someone might have posted it on social media. In this case, the photo would still need to be licensed, and maybe the reality star’s name and likeness as well.
In a best case scenario, Kris says, “I have a signed license agreement from a local photographer, and the guy on the horse is his friend, Larry.”
In this scenario the copyright in the photo seems to be properly licensed. However, there will be an entirely different set of factors (and legal fees) to determine how to deal with Larry if Kris doesn’t also have a likeness release from him.
Typically at this point in a client discussion, the next question is “What about Fair Use?” or “Will we really get sued?”.
It would be rare if either of these questions had an easy answer. Fair Use is a complicated legal defense that courts are often inconsistent about and distributors don’t like to rely on. The risks of a lawsuit can depend on many different factors ranging from the visibility of the project to the mood of the potential plaintiff on the Tuesday when they happened to notice their photo for 2 seconds in the middle of a video package.
Of course, all of these risks are magnified if applied to broadcast advertising media. Any form of video production in today’s world is full of legal risks, and the best way to protect yourself is to try to avoid third party materials altogether.
If that is not an option, keep very careful source records for everything you ingest, and try to educate all team-members to understand legal risks of pulling something from the internet. In this column, we will bring you current and practical examples to help navigate and stay up to speed on this changing landscape of legal risks in video production.
Jed Enlow, a partner at Leavens, Strand & Glover and formerly the production attorney for Steve Harvey and The Oprah Winfrey Show, helps clients navigate the evolving issue of content creation and ownership, finding practical solutions to their content issues. Leavens, Strand & Glover, LLC in Chicago and Nashville.