Today, it is easy to share your work by uploading it on social media like YouTube, Facebook, Instagram and Twitch. Depending on the privacy settings you choose, these sites give you the option to share these videos with all internet users. In general, creating a video is a process protected and regulated by laws that are the same however you display, sell or rent the finished product. However, there are some legal matters specific to online video creators. Let’s take a look at the legal basics for online video.
Contracts for video producers
A contract is a promise that you’ll do some specific work for someone, that someone will pay you for your work, and that both of you are legally bound to uphold your side of the bargain. It’s important to be familiar with the basics of reading and writing a contract if you plan to make money as a video producer.
Contract for traditional video work
If you are making a video for a client – say for a wedding – the agreement with your client, known as an “event agreement,” should cover standard terms and conditions found in any contract. These specific terms can include:
a) the time and place of the event and the duration of your participation;
b) the length of the final video;
c) whether you will record the wedding ceremony, the reception, or both;
d) how many copies of the video will be delivered and in what medium;
e) when and where you will deliver the video;
f) client-provided music, still photos, or other materials;
g) your fee;
h) excuses for your non-performance due to acts of God or unforeseen events;
i) your cancellation and refund policy;
j) penalties for non-performance if any;
k) the jurisdiction for litigation or arbitration if a dispute arises;
l) warranties by your client and by you;
m) an indemnification by your client protect you from lawsuits of any nature;
n) copyright ownership;
o) your storage policy for original tapes; and
p) the amount of wedding cake supplied to you and your staff.
Online video and terms of service
In order to upload a video to an online platform, you must agree to abide by the platform’s rules and regulations. YouTube, for example, which is owned by Google, states in its Terms of Service that, when uploading user content, you retain ownership of any intellectual property rights in the content. But you nevertheless grant Google “a worldwide license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute such content.” This license continues even if you stop using YouTube’s services, though removal of the content may be possible.
If Facebook decides to sell copies of a video you post and subsequently makes millions of dollars, you will have no right to any of that money despite being the author of the work. Facebook’s terms clearly grant royalty-free licensing rights. By the same token, since you retain ownership of the uploaded content, any liability created by it falls back on you.
The video you create is your original work. So, while you may need permission to use a protected song or image, you ultimately own the intellectual property of your video.
Your video script, any original music or images and the video as a whole are automatically protected when you record and upload it on the platform you choose. This means that if someone is using your original content without your permission for commercial gain, you have the right to take legal action.
In the credits, be sure to display your copyright notice, which grants you certain rights while also providing free advertising. Here is a sample:
© Your Name 2021.
What is infringement?
Copyright infringement is the act of violating a copyright holder’s exclusive rights granted by the federal Copyright Act. It is nothing short of theft. Infringement is dependent on three components: the holder must have an active or enforceable copyright, the alleged violator must have access to the copyrighted material, and the duplication must be “substantially similar” to the copyrighted material.
Copyright infringement relies heavily on these three prerequisites, with the absence of only one stultifying the infringement process.
Registering your work
In the United States copyright attaches automatically when you create a work and registration is not necessary, but you must register your work in the U.S. Copyright Office if you wish to sue an infringer.
You can usually prove presence of the information or “access” easily. Courts typically will revert to a question of public access to prove presence of the information. For instance, was your copyrighted material displayed on YouTube or at a film festival,
or was it stowed away in your basement?
How similar is too similar?
Substantial similarity is the standard used to determine the level of similarity between two materials. This is arguably the grayest area of the criteria for infringement and the topic on which most courts vary. We rely on substantial similarity because you may find direct evidence of copying difficult or impossible to prove. Courts use the judgments of the ordinary lay observer to determine similarities.
What to do if someone infringes on your copyright
If you discover that someone has copied your video without your permission, you have only a limited period to register your copyright in the U.S. Copyright Office and to file suit against the infringer. Criminal proceedings may be filed up to five years after the discovery of the infringement and civil actions may be filed only within three years of discovery.
How to avoid copyright violations
To avoid anyone accusing you of infringement, do not copy any material from the internet or anywhere else. It’s as simple as that. This holds true for derivative works, too. If your video is derived from a copyrighted work, you won’t be able to use it without written permission from the copyright holder. So no, you can’t change “just a little bit” of the original work.
How to write a takedown notice
If your copyrighted work is online, but you didn’t put it there, you can remove it with a takedown notice. A Digital Millennium Copyright Act (DMCA) takedown notice must include six items, in no particular order.
a) your contact information or contact information of a party authorized to
speak on behalf of the copyright owner or owners;
b) the title of the copyrighted work;
c) the location (e.g., web site) of the alleged infringing item;
d) a statement of your good faith belief that the material does not lawfully
appear on the web site;
e) a statement expressing that, under penalty of perjury, the person whose
contact information has been provided is indeed authorized to act for the
copyright holder; and
f) the signature of the party whose contact information has been provided.
Send your takedown notice to the appropriate party. For websites, the hosting Internet Service Provider (ISP) is your takedown’s destination. Send a hard copy of the notice by registered snail mail. Of course, keeping a copy of your letter is also a good idea. Below is an example of an appropriate takedown notice.
Sample takedown letter
Mr. John Q. Infringer
123 Oak Street
Dear Mr. Infringer:
I am the creator and owner of the movie, “A Funny Thing Happened on the Way to
the Courthouse.” It has come to my attention that you have copied and/or distributed
some or all of my work without my permission and are displaying the work on the
Internet at the website, www.CopyrightInfringer.com/Courthouse.mov. I have a good
faith belief that your posting of my material without my permission is not lawful.
Under the Digital Millennium Copyright Act and Title 17 of the United States Code,
statutory damages for copyright infringement can be up to $150,000. I declare, under
penalty of perjury, that I am authorized to act as the copyright holder.
I HEREBY DEMAND THAT YOU TAKE DOWN YOUR POSTING OF MY WORK
IMMEDIATELY OR I WILL BE FORCED TO TAKE FURTHER LEGAL ACTION
Very truly yours,
Infringed in Indiana
123 Innovation Drive
Legal basics of online video and beyond
This has been just a brief primer on the legal matters that go along with online video production. If you need help with a specific situation, it’s always best to seek professional legal advice. However, it’s nice to know that laws are in place to protect you and your creative work.