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Avoiding copyright pitfalls: How to create web content without getting sued

Curtis Hankins
By: Curtis Hankins Last Updated: October 15, 2020

Producing podcasts, videos, and any other kind of online content these days can seem like a veritable minefield of IP and copyright issues that could get your content flagged by YouTube, claimed by a company for revenue, or most worryingly – sued.

Luckily, the common pitfalls are easy to avoid with a little bit of preparation, and some of the things you might imagine could be an issue are actually no problem at all. Here’s a list of common questions and concerns from podcasters, YouTubers, and other video producers – and the answers that help keep your content from being flagged, claimed, or otherwise disrupted.

What kind of music can I use in my podcast/video? Is it okay to use hit songs from big artists?

Unfortunately, using music made by artists under almost any record label at the very least, is likely to get your video or podcast claimed by the rights holder. There are a few different outcomes to this, and the most common one is that the rights holder will simply takedown your video or block people from different countries from viewing it. On YouTube, they can also choose to allow your video to stay up but monetize it with ads and claim all or part of the revenue as their own.

The exception to this rule is when your usage of music falls under fair use, such as quoting a few lines from a song for a review or transforming it heavily for parody purposes.

The simplest way to avoid any trouble is to use music that’s 100 percent copyright free and licensed under Creative Commons. There are entire libraries out there of copyright-free music, YouTube provides their own, but there are others such as Bensound available for free. Others like Monstercat, which costs $5 per month, offer full access to their library for a small, recurring fee.

Can I talk about brands in my podcast/video?

Of course! The only thing to be careful of is making false or misleading claims about brands or their products. Talking about how your new Blue Yeti microphone is really improving your audio recording efforts is okay but claiming it can also serve as a portable hard drive is not. The same goes for criticism. It’s okay to provide an honest assessment of a product’s faults – just be sure that everything you are saying is true and don’t exaggerate a problem for the sake of drama.

For example, if a new phone has a poor battery life, be honest about the problem – but do not say that it dies after an hour of playing videos unless you can provide evidence to support the claim. The offended brand might take legal action to remove your video or seek reparations for damage it caused. Even if the brand does not try anything legally, it might damage your audience’s trust in you.

Can I wear branded clothing/show branded equipment?

Absolutely, as long as you do not try and present yourself as the owner of said brand. For them, you showing their brand off is simply free advertising. In fact, if you are a popular content creator that frequently shows off your branded clothes and equipment, it is possible that company might approach you for a sponsorship deal.

Can I use someone else’s video/audio in my own production?

This one is a bit more complicated, but the answer is generally yes (with a big asterisk) as long as it falls under fair use. You can use a news clipping you found as long as you attribute it AND it is only supplementing transformative, original content of your own.

Here’s one scenario: You host a daily news show on YouTube and heard about an actor receiving an award. You cannot simply say “Brad Pitt won an award,” show a clip from E! network reporting all the details and then move on to the next topic. What you can do is show an attributed clip from a broadcast of Pitt accepting the award and then expand on all the details of how and why he won the award in your own words.

The problem is that what qualifies as “transformative” is very gray, and fair use is not an actual license. You can be 100 percent confident that your content falls under fair use, but a company could still sue you and force you to defend it in court. The surefire way to avoid any potential legal problem is simply obtaining permission from the rights holder. Here is a short video created by YouTube itself that summarizes fair use, how it can protect you, and what its shortfalls are: https://www.youtube.com/watch?v=1PvjRIkwIl8.

Things can get even more complicated on YouTube, however, due to the automated Content ID system. This system scans every video posted and compares it to their library of copyrighted content, and even if your usage of a clip constitutes fair use, it might get automatically flagged and result in your video being taken down. You can appeal this as long as your content actually falls under fair use, but it can cause short-term headaches while you wait for the appeal to be manually approved.

Essentially, do not simply copy and paste others work. You must use it as a supplement to your own original, meaningful content.

To get local, expert advice on copyright, IP, and patent law, visit Hartman Global at https://hartmanglobal-ip.com/.