Kurt Klaus headshot

Brian Medich headshot

By: Kurt R. Klaus, Partner at Dunlap Bennett & Ludwig, & Brian Medich, Attorney at Dunlap Bennett & Ludwig

Today’s marketplace is ever-expanding – and no I’m not just talking about Facebook Marketplace- although Facebook does, certainly, have an expansive position and a plethora of amazing deals. Instead, I mean the B2B (“business-to-business”) and B2C (“business-to-consumer”) marketplace at large, i.e., where the interchanging of ideas, goods, and services occurs.  It is in this marketplace where brands, such as Facebook, work hard to live, and learn, and grow, … all to consciously rise above the din (… or not).

Now, add in social media, … and it is fair to suggest that marketing, itself, has hit a revolution. In fact, brand marketing departments must deploy increasingly varied and complex strategies via social media just to keep their brands relevant, … never mind using social media as a tool to “rise above the din.”  Digital platform short-form branding videos are often key to social media marketing strategies- especially as conventional TV viewership continues to dwindle (ergo a diminution of conventional TV ad importance) and web browsers provide ad-block.

Clear examples, …?  Okay.  Many brands and brand parents now have their own YouTube channels containing hundreds if not thousands of short-form videos (… that’s right, … I said thousands of videos, …) that garner millions and millions of views. Consider Under Armour’s YouTube channel with (at the time of this writing) 224,000 subscribers and 610 videos. Then there’s Lockheed Martin with 255,000 subscribers and 1,155 videos. Even YouTube has a YouTube channel, with 29,200,000 subscribers and 308 videos (… YouTube has a YouTube channel, …).  Meaningful branded videos published via digital platforms such as YouTube, Instagram, Facebook, and the like are growing more and more indispensable, so, … brands are either joining in or else falling behind.

Unfortunately, it isn’t cheap to both keep up with competitors and take full advantage of social media platforms.  Something has to give.  So, … it seems traditional schemes for video production are giving way to modern necessity.

To control related costs of publishing ever more video assets direct to digital platforms, marketers increasingly turn to “small-house” producers (e.g., direct to digital production companies that are less expensive alternatives to full-service production companies), influencers, and in-house produced content to handle video content supply requirements. While this shift in methodologies supports agile brand marketing opportunities, there likewise arise concerns: e.g., ensuring the brand’s in-house or “small-house” handlers have commercially vetted production-related process, risk, and rights in order to actually use the content as produced with no, or at least acceptable, business risk.

One would think if a brand develops creative and produces online content based on that creative, the brand should be able to use that content with no problem. But, that’s not always the case, if the intellectual property rights associated with the media content haven’t been properly secured. A few recent examples quickly come to mind:  (i) Peloton was sued for music copyright infringement involving its use of songs in workout videos, with plaintiffs seeking hundreds of millions of dollars in damages, (ii) Sandra Bullock and Ellen DeGeneres have sued websites over misleading ads and fake online endorsements, and (iii) Ariana Grande has sued Forever 21 and Riley Rose (brand) alleging misappropriation of Ariana Grande’s name, likeness, and music.  No one wants to be unable to use their own creative, or possibly face expensive litigation in order to find a resolution.

In the end, building, maintaining, and featuring brands by employing short-form videos or any other audiovisual or musical work or unowned or uncontrolled right, especially in an evolving marketplace, requires brand owners and brand employees to be very knowledgeable concerning related business and legal affairs issues.  Not exercising due care for compliance with applicable laws and trade practices could result in tarnishment of an affected brand, wasted ROI (“return on investment”) opportunities, and lawsuits.  If those who are involved do not have the requisite knowledge or resources in-house, then qualified outside legal counsel should be brought in to support such branding efforts.

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