Licensing Other People’s Stuff – Don’t Get Stuck in the Swamp

What happens when you have a great idea for a campaign or content that includes someone else’ stuff?  User-generated content (UGC) is one lower-cost way to source that material, but it has it’s own problems.  The other way is to use copyrighted works of others, like music, or writings.  In both cases, though, you are going to need a license.

User-Generated Content

I am going to distinguish UGC from copyrighted works for the purposes of this post.  UGC is stuff you asked for.  Copyrighted works are things that were created not for you, but for some other purpose.  The latter includes UGC on portals you do not control.  So using YouTube videos taken out of the YouTube service is just as problematic as performing the Happy Birthday song.  Read the fine print, folks.

If you set up your user-generated content portal the way you should have, you should already have a license to that content or have at least read my post on ‘Free Labor.’  If you didn’t, please look in a mirror and say ‘I was wrong,’ and go to the next section.  However, depending on the end use of the material, I would still recommend getting the permission in writing.  This is a sliding scale of effort.  For a social media post using a UGC photo, relying on nothing more than the terms of use for the portal will probably be enough.  If you take that photo and put it on a billboard in Times Square, get something in writing.

The problem with terms of use is that they are nothing more than a click-through agreement.  In contract law, a valid contract requires some meeting of the minds, or offer-acceptance.  While click-through agreements are generally accepted, I think there is still some wiggle room for the right holder to argue.  I think their motivation to argue goes up the larger the use, such as that billboard.  If you like making new law for the rest of us, go ahead and rely on your click-through.

Other’s Copyrighted Works

You control the parameters of UGC.  You do not control the parameters of others copyrighted works.  Let me be clear here, this is a morass.  It can be as dangerous as the fire swamp in The Princess Bride.  You are going to need a license to that work.  This will need to be in writing, and in all likelihood you are going to pay for it.

Consider the use of the work.  In other words, plan ahead.  While you may just be wanting to use the work for an internal training event, think about how you might want to further use that.  Going to video-tape that event and submit it for a local or national recognition?  Maybe, include it in a TV, or online, commercial vide showing how great your workforce is?  If you didn’t plan for this up front, you are going to have to go back and re-negotiate the new use.

Draft your license agreement based on that use.  If you are smart, you can add other uses into it that you think of as well, but the producer of the event didn’t.  I would also suggest future-proofing yourself with language like ‘in all media, now known, or discovered in the future.’

Music to My Ears

If your campaign includes someone else’s music, strap in for the legal roller-coaster.  The swamp that the title refers to is the swamp of music licensing.  There are so many variants to music licensing that I recommend that you find someone that can help you with securing those rights for you.  If your brand is large enough, you might have enough work to justify having that expertise in-house.

The problem with using copyrighted music mirrors that of other copyrighted works, to be honest.  That is that you should pay for it.  If I am the holder of the rights to that work, I want to maximize my royalty stream, right?  Therefore, each new use of that work will require some sort of payment.  That is why I told you to consider all uses of the work.  Between mechanical rights, retransmission rights, synchronization rights and performance rights this can get very complicated very fast.  Go find someone who has done this before.  The alternative is to get it wrong a few times and learn from your mistakes.  Hopefully the mistakes aren’t too grand.  Remember, experience are mistakes you live through.

Any Use is Public

Most clients get this wrong.  ‘It’s just a small employee meeting,’ is the beginning of a brain aneurysm for some in-house counsel.  There is no such thing as private.  Every use is public, and every brand’s use is commercial.  The only difference lies in your exposure.  For a small presentation to 6 high-level executives, you can probably get away with it.  That doesn’t mean that you shouldn’t get permission (aka license) to use that content, it just means that in all likelihood the owner of the copyright will probably never know about your use.  This is a practical calculation, not a legal one.  As a lawyer, I would tell you that you should have the license for even the smallest use.  Well, I would tell you that there is risk in the small use, and make you accept that risk.

Tomorrow on SoLoMo Law

Like everyone else I have been paying attention to the privacy debacle here in the US.  Tomorrow let’s revisit where you should be placing your ire and where you shouldn’t.

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