Blogging is increasingly becoming a multimedia activity with more writers also adding images, audio and video to their sites.
But while video blogging, or vlogging, is a great way to reach out to a new audience and engage your existing audience in a new way, it brings with it a whole new set of legal risks and challenges that have to be overcome.
This is not only because you’re working with a different medium, but because you’re working with different hosts and using different systems to get your work out there.
In short, even if the laws don’t really change that much when you make the jump to video, the practical realities do change a great deal. If you’re not ready for them, you could be dealing with having your videos muted, pulled offline or even losing your whole account.
Here’s a few quick tips for avoiding the biggest legal pitfalls when it comes to video blogging.
What the Law Says
The long and short of it is that the law does not treat video or audio content any differently than it does image or text content. They are all creative works of authorship and receive the same amount of protection.
What this means is that you can’t use video, audio, scripts or other material in your videos without permission, with the narrow exception of fair use and items that are in the public domain.
With audio you need to be particularly careful as there are actually two sets of rights to worry about, the songwriter, the person who wrote the song, and the performer, who recorded the track. This means many songs might have two different people you need to get permission from if you want to use their work.
Other areas of the law are also largely the same. You can’t say anything in a YouTube video that defamatory the same as you can’t do it on your blog. In fact, defamation in YouTube is considered Libel even though libel is usually associated with written defamation. This is because online videos are considered published where slander more commonly deals with face-to-face defamation.
Likewise, you can’t use your videos to indicate that you have a relationship with a company or product that doesn’t exist. You also can’t use your videos to cause confusion in the marketplace regarding a product, service or company. Pay special attention to the name of your series and any time you talk about a trademark to ensure that you’re not doing so in a way that might be confusing.
Finally, privacy issues become much more important when dealing with video. So make sure you have proper releases from the people you are filming and that you’re filming in public places where people don’t have a reasonable expectation of privacy.
Many of these topics we’ll likely cover more in-depth in later articles but, for right now, the main point is that legally a vlog is considered publication the same as a regular blog so your YouTube channel has to obey the exact same rules and laws as the rest of your site.
The Rise of the Bots
But while the legal theory surround vlogging is fairly straightforward, the implementation has been much more difficult.
The reason sites like YouTube, UStream, etc. receive a large number of copyright-related complaints. Most of these complaints deal with people attempting to misuse the service to post TV shows, movies, etc. to the site illegally.
However, these complaints can take a great deal of time and money to process. So video streaming sites have taken to using automated bots to patrol new uploads and filter out content that is likely infringing.
Though the systems largely work well, recent cases such as YouTube’s debacle with the stream of the Democrats National Convention and UStream’s closure of the Hugo Awards shows that these systems are far from infallible.
What this means is that some uses that might be allowed by the law will not be allowed on these sites. Though you can often protest the decisions of these bots, the reality is that, as per these sites’ TOS, they are not legally obligated to host anything at all for you and can take down what they want at any time for any reason.
This includes copyright bots that make mistakes.
It’s important to remember that these bots can not detect licenses nor can they make determinations about fair use. If you use content from the sources these bots are matching against, predominantly mainstream movies, music and TV shows, you will likely have that content matched and, in the process, have some kind of action taken against it, as determined by the owner of the content.
If you wish to avoid these bots, the best approach is to avoid using the content they watch for. Though you might know the perfect video or song clip to go with your next entry, using it risks a hassle. Instead, stick to content that is openly licensed, such as with a Creative Commons License, or content that is in the public domain.
This content is not being monitored by the bots in question, or at least it shouldn’t be, and it should help you avoid any conflicts before they start.
If you have to use such tracked content, such as with a review, keep the clips that you use to a minimum. Use what you need to make your point and no more. Not only does this help avoid the bots, which are often set up to trigger only after a certain amount is played in a video, but it will help bolster any fair use arguments that you may wish to make later.
Basically, keep in mind that bots will be looking at the content you upload to your vlog and that they can’t determine if the use is licensed are not. So be prepared to either avoid them, or deal with those conflicts as they arise.
In the end, legally speaking, vlogging is not that different from any other type of blogging. You still have the same legal issues, copyright, trademark, defamation and privacy primarily, but you are dealing with them in a much more hostile environment.
Copyright bots, aggressive TOSes and accidental content removals may not actually change your theoretical rights and responsibilities, but they change your practical reality.
If you aren’t aware of how the switch to video changes things for you, it’s very likely you may find yourself spending as much time trying to keep your videos and your account online as you are creating new content.
It may not be fair but it’s the situation we are in and the nature of video streaming today. You may only be caught in the crossfire of the battle between copyright holders and pirates, but bullets hurt just as much when they were intended for someone else.