I interviewed Entertainment Lawyer Gordon Firemark, producer and host of Entertainment Law Update, and author of "The Podcast, Blog, and New Media Producer's Legal Survival Guide." In Part 1 of our 2-part Interview, Gordon shares with me some of the more important legal issues today with online video, and offers some solid professional advice for how to choose and work with an attorney for your online video business needs. You can click the "play" button below to listen to our entire podcast interview, or read the highlighted excerpts below.
(DISCLAIMER! The following information contained in this interview and entire article is intended to provide general information and does not constitute as legal advice. We recommend that you should not act or rely on any information in this article without seeking the advice of an attorney.)
What are the Important Legal Issues Today with Online Video?
Grant: Are there any different or distinctive legal issues with "new media," particularly online video, for businesses today?
Gordon: You know it's interesting because what we refer to as "new media" is not really that new in terms of the legal issues that come up. People's rights haven't changed just because now we have Twitter or YouTube videos and things. It's really about it just being a lot easier for the average person to make media. And so there's a higher volume of encroachment into people's private and personal rights and those kinds of things. But the rules really haven't changed that much, at least not on the front end, the production end of things. When you get into production sometimes we have to deal with new ways of distribution and therefore new ways of remedying the problems.
Does the law is having a hard time catching up with the rapid improvements in technology and accelerated audience adoption of online video?
To a certain extent, it does. But I think it's a good thing that the law and the evolution of the law move slowly. We don't want it constantly reacting to every little shift and change in the marketplace because then you end up with an overblown, burdensome legal system with too many rules and regulations. (And some will argue that it is already over-blown.)
You see, if were reacting all the time instantly to every little trend, we would be spending a lot more of our time and energy dealing with that then with actually getting stuff done. So it takes a while for things to shake out, and problems to be brought up and then resolved, either in the courts or by the legislature and so on. What we lawyers are doing is sort of applying old rules or last month's rules to the new issues, and hoping that it works; and when it doesn't that's when we see a lawsuit or a change in the law.
What would you say are the most important legal issues today for businesses involved with online video?
Well it's not exactly a legal issue; it's as much a business issue as anything, and that's how to monetize the creation of this new online content. We're creating this content with an investment of our own time and expense. How do you make money from it and you know turn it into a business (and legally protect your assets)?
The legal issues as I said are very similar to the legal issues that "old media" – motion pictures, television, and radio have. It's dealing with people's privacy rights, libel and slander, contract stuff that comes up; and of course copyrights and trademarks, and that's where most of the activity seems to be these days. That's because so many content producers are just rushing to create this stuff without much thought to the rights of others; and the fact that they're including other people's property in the new stuff they're creating and how do you deal with all that. So those are the kinds of issues that folks need to be more informed of.
Consequences of Ignoring Legal Issues with Web Video
What have you seen to be the consequences for businesses that haven't been mindful of the legal ramifications around the video the put out online? Like, if they're not working with expert counsel such as yourself, and what happens afterwards?
What often happens is they end up embroiled in these big lawsuits; and depending on whose rights they are infringing it can be a very big lawsuit.
We've seen, just recently, there was an outfit called ivi TV (ivi.tv) that was streaming broadcast television programs over the Internet. So you could be in Florida and watch a show from Seattle, or something like that. And then they got shut down, just flat out shut down. So all that investment capital that went into starting up that business went right out the window.
And we say that with the Veoh – you know, the competitor of YouTube – Veoh was sort of put out of business by lengthy protracted litigation. Even though they didn't lose at every stage of the game, they spent so much money defending themselves in these lawsuits that it essentially shut the company down. So that's the negative consequence.
How Businesses Doing Online Video Should Choose an Attorney
How would you recommend businesses doing online video go about selecting an attorney?
I would say choose a lawyer in much the same way you would choose a doctor. This is about your business' health and welfare. So you're going to ask around for referrals. Who's the best at this stuff? Do some Web research. Learn what you can about the various prospective people that you might end up hiring. And then schedule some consultations and get to know the folks that you're looking at and decide whether you like the person, their style, and their approach to things. Ask yourself, is this somebody you can trust?
Most often what happens is folks, in new businesses especially, are very price conscious (and select an attorney based on how low their rates appear). I think that is often a big mistake. You shouldn't let the retainer or the fee structure bog you down too much in this decision-making. Find somebody that you know and can trust and who you like and build a relationship with that person. They will look out for you. It's not just about the hourly rate. An experienced lawyer charges say $500 an hour, and an associate charges maybe half that. These are not interchangeable lawyers. That extra experience, and being able to get along with and trust your lawyer, that's worth a lot in this marketplace. It's worth the extra cash.
A lot of the time that lawyer with the experience and the high price tag will actually take less time to get up to speed to achieve the results you want. So in the long run you wind up better off.
About Gordon Firemark, Entertainment and Media Lawyer
Gordon Firemark practices entertainment and media law in Los Angeles, California. His practice is devoted to the representation of artists, writers, producers and directors in the fields of theater, film, television, music, and "new media”. "What I do is help professionals and artists and the business side folks to make smart deals and realize their dreams by helping them watch their bottom line, their back end, and keep them out of trouble." says Gordon.
Gordon's credentials include:
- Producer and host of Entertainment Law Update., a podcast for artists and professionals in the entertainment industries.
- Author of The Podcast, Blog and New Media Producer's Legal Survival Guide.
- Teaches Business Law at Loyola Marymount University, and Theatre Law in the innovative Online Entertainment LLM program at Southwestern Law School
I've actually followed Gordon since his days co-hosting the The Law and Video podcast – the first live, call-in podcast to clear the air on legal issues for filmmakers and videographers who were looking for answers to questions related to starting a production business, copyright issues, contracts, intellectual property and distribution. The show ran from 2007-2009, and a lot of the legal topics still apply very well to online video production and marketing we do today. Both of his podcasts are still available for free listening on iTunes.
Next Up - How to License Online Video & Protect your Ownership
(In Part 2 of our interview, Gordon will share with us about how to get and give proper permissions and licensing for online videos, as well as how to have your attorney negotiate deals and draft contracts with online video in your business.)