The Legal Issues All YouTube Creators Need to Know About: TubeTalk 205 with Seth Polansky
As a YouTube creator you have a huge number of things to take into consideration - your video and audio set up, keyword research, thumbnail design, content ideas, and SEO for example. But there’s another piece of the puzzle that all creators have to consider - the legal side of content creation.
On this episode of TubeTalk we’ll focus on the legal aspect to brand and sponsorship deals. We’re joined by Seth Polansky, an attorney who specializes in intellectual property law and contract law. What a perfect guest to discuss the legal issues that every YouTuber should be aware of. In this podcast you will learn:
- How to protect yourself as a YouTuber in a brand deal
- Why a solid contract is the basis of every successful brand deal
- How to ensure you receive the money you were promised
- Why US YouTubers need to set up an LLC to protect their personal liability
- That, yes, even if you are a single creator, you need a legal entity behind you
- What an operating agreement is and why it's so important
- What are the rules of 'Fair Use' when using other people's content
- What 'Intellectual Property' is and how it's protected
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The Legal Issues All YouTube Creators Need to Know About: Podcast Snapshot
Liron Segev: What do all YouTubers need to understand about contracts?
Seth Polansky: Nobody looks at a contract when everything's going well. It's only when things go wrong that everybody scurries around and tries to find a copy of the document to read it. You know what contracts really are in a nutshell are the rules for what happens when things go wrong. You have to make contracts your policy. Do not deviate from that. No handshake deals.
Liron Segev: You are an expert in intellectual property law, can you take us through the meaning of ‘Fair Use’ when it comes to using content that you didn’t create yourself?
Seth Polansky: First thing to mention, since this is an international audience, is that fair use is not a thing everywhere in the world. Don't assume that just because you understand what fair use is or you think you understand what fair use is in the United States, that it's going to fly everywhere. That's the first one.
The second one is fair use is always going to be interpreted in the most conservative manner. Just because you slapped a filter on a painting of a storm trooper pointing his finger at you saying, "I want you for the Imperial Navy." Does not mean that that's a fair use of Disney's intellectual property. Just because you didn't get a cease and desist from Disney doesn't mean you are not exposing yourself to risk.
There's a four prong test for whether use is fair. There's commerciality, the amount and the extent of the stuff you take. Did you take the heart of something? Did you take a bunch of it or do you just take a couple of little pieces?
There's also a piece that deals with the effect on the market. For example, no one is going to walk into a supermarket looking for some soup and walk out with Andy Warhol's Campbell soup cans. There's no effect. There's no market effect on that use. That's another way we check to see if use is fair.
Now, the most common ways that we figure out whether use is fair or not, is to determine whether there's a educational exception, a parody and satire exception and a news based exception.
Regarding the educational based exception, If I am teaching you either remotely or in person, I can use pieces of other people's intellectual property to teach you about that intellectual property. That's why documentaries work. I don't need to go get Disney's permission to do a documentary on Disney. They're probably going to sue me anyway but if I'm smart, I bought a rider on my insurance policy to defend myself against a frivolous lawsuit by Disney.
Liron Segev: Can I take a Taylor Swift song and create my own version of that? Then things are just not so clear anymore.
Seth Polansky: That last sentence is exactly it. If you take nothing away from this part of the conversation, understand that fair use is always a question of law. Whenever anyone says to you, I have a right to fair use, you know they're full of crap.
There's no such thing as a right to fair use. What you have is assert an exception to someone's absolute right to control their intellectual property. And you can always, always, always, always be dragged into court and forced to prove that your use is fair and that's usually a losing prospect because if you're a small business, great, you've spent $20,000 to have a court decide this use is fair.
Go ahead. Where are you going to get that $20,000 back? You're not, you just blew it. It's gone.
*Liron Segev: With fair use, who needs to prove that?
Seth Polansky: The onus is on the user - to prove the use is fair. Disney does not have to prove that they own that content, you have to prove that the use of it is fair. Of course, they also have to prove they own they do that by submitting to YouTube a copy of the trademark filing or the copyright filing.
The way that this is applicable to content creators is that I see people use clips of stock footage or background music and I know those things aren't licensed. I recognize songs every now and again and I'm confident beyond doubt that this person did not license a that song for their content.
Odds are good if you're flying under the radar, nothing's going to happen to you but the problem is once you start to grow your business and hopefully that's what you're trying to do, you are no longer going to be flying under the radar and that strategy is not going to wor. Quite frankly, it's going to hurt you because if you're trying to get a brand deal, that brand is going to make you sign a contract that says you have properly licensed or own every single thing in that piece of content and they're going to require you to go out and get errors and omissions insurance. Here's how that works. If you lie, not only are you in breach of your contract.
Liron Segev: Let’s talk about intellectual property and trademarks
Seth Polansky: Here is the best way to understand copyright and trademark in 30 seconds. Think about what the words mean. Copy right. It is the right to make copies of something. If you have the copyright, you and only you have the right to make copies of it or to authorize someone else to make copies of it.
Trademark is exactly what the word says as well. It is the mark of your trade. The Nike swoosh is a mark of the trade.
If you take only one thing away from this section, it is be really careful about using other people's intellectual property in your content unless you have permission.
Liron Segev: I'd love to hear your legal disclaimer right about now I just want to make sure we're above board and people do not misunderstand what we're saying in this podcast.
Seth Polansky: Absolutely. There's two parts. The first part is the legal disclaimer. I am not your attorney. You should not rely on my advice to your detriment or otherwise based on anything you hear today. If you really need help in this area, I'm happy to have you as a client if you'd like to hire me but please seek a legal professional to help you. Don't try to do this on your own or Google it. I can't tell you the amount of people I've had to explain, well I'm sorry, your Google search is not the equivalent of my law degree.
Liron Segev: If people want to get more information, what's the best way to do this?
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