In our continued legal series, ReelSEO's Grant Crowell interviews Deborah Wilcox, partner with the law firm Baker Hostetler and co-chair of the firm's Intellectual Property Litigation Practice. Deborah is one of the longest-standing speakers for search engine marketing conferences on legal issues, having spoken at the very first Search Engine Strategies conference to feature a legal panel, way back in 2002.
Grant: In your opinion, how well do you think search marketers understand the legal ramifications with online video content?
Deborah: Its hard to generalize. Some marketers are very familiar with this, and they jump through all the right hoops and proceeding with the development of their content, and how they market it and use their SEO techniques to get it out there. But because so many people are jumping in now, they might not have the background, from a business and legal standpoint, to know what a complicated area that [online video] advertising can be. That's where you can get yourself into trouble pretty easily. It just takes due diligence on the part of anyone who's going to do business in this area to bone up on not just what the industry standards are [for video advertising], but also what the legal standards are.
How does a video search marketer decide who they should choose for their legal counsel? Do they go with a general IP counsel, or should they go with a specialist in entertainment or television advertising?
First, it is very important to have a good adviser on your team. IP has been described as a very broad area, even though it often mostly has referred to trademarks, patents, and copyrights. (False advertising is sometimes included in that rubrick.) But there are people who focus more specifically on advertising issues – including clearance, releases from the actors, and substantiation from claims that are made from comparative advertising-type issues.
For example, one of my partners in my Washington office comes from the FTC. When the issues spill over from copyright, trademark, and SEO (which are the things I focus on), into some of these more particular advertising issues, I bring him on to the team. And likewise, when his work spills into more copyright and trademark type issues, then he brings me into a project that he might be working on. So there are people who are specialists who focus on these particular type of issues, and that's who you need to look for. You can find these people by doing searches for certain terms and reading their bios online, and see if they're really up to speed on things, and if they're viewed as one of the preeminent lawyers in the field. You might not always be able to afford the preeminent one, but there are ones that I know that I refer smaller businesses to who can assist in these types of matters, because its just dangerous to try and do it on your own.
Grant: How does the legal situation with online video marketing today differ from where they may have been just a few years ago?
Deborah: Because this used to be such a controlled environment, where you would go to an advertising agency and they basically know, as an established business, what rights you need to go through, and they'd take care of it most of the time for you, and doing all of the clearances. Now you just have people who are just throwing their hat into the ring and everybody's doing this, and they just don't understand all of these clearance issues that have always applied to media, and certainly apply now. People still have this concept that the Internet is more of a free-for-all, and they think that intellectual property (IP) owners shouldn't complain if their music is being highlighted in a particular video or something like that. That model might be changing a little bit, but with video you still have permission issues, especially for commercial use or an endorsement, or even just for content.
Speaking of music, we find a lot of businesses insert professional music soundtracks in their online video content, liked without receiving permission from the copyright owners. What clearance is required with featuring other's music in a video?
Use of music in sync with a video requires a. You can't just pull a CD off the shelf and use it as background music for a video, especially for commercial purposes.
Basically, all of the clearance issues with video content definitely makes it more complicated for search marketers who are just used to linking or quoting other people's text-based content. There's a lot more involved with video when there's talent and copyrights and agencies, and even licensing fees.
It really is a fairly complicated analysis as to when you need to get permission, and what kind of permission you need, and what you might pay for it. These are all sensitive issues, because there really aren't any bright lines in the law (unless you were to take an entire television show and incorporate that into your video, for example). If you're taking snippets, then you need to have someone take a look at it and determine what direction you need to go in. It can be different in any given scenario. So it's hard with video to summarize what you need to do A-B-C in any situation. This area is just so heavily litigated that's its hard to say exactly what you need to do, other than you should involve attorneys to get clearance when you're taking someone else's content or trademark, or a product you're trying to showcase that doesn't have anything to do with your particular content. These are all age-old advertising issues that just now are being applied to the new medium.
How quickly can search marketers adapt and properly understand the legal issues with video?
The legal issues with Video SEO are all the same with traditional SEO before it. It's just another new medium to deal with. Just like you have lots of issues with television commercials, with how the advertising agency would put together a particular piece – if you have all of the clearance rights (releases) from who's appearing in the video, who owns it and what you can do with that, and who owns the content, and how you describe it and market it. These are all the same old issues, but they just get applied to each new medium that comes across.