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ATTORNEY ADVERTISING NOTICE. The contents of this article, and the accompanying articles of this five-article set, are: (i) attorney advertisements, (ii) designed and provided for general informational purposes only, and (iii) are not intended to provide, and should not be construed as providing, legal advice of any sort or for any purpose. Neither Dunlap Bennett & Ludwig, PLLC, nor Kurt R. Klaus, Esq., are responsible for any action or failure to act in reliance upon information presented in this article or any accompanying articles. No action, or decision not to act, should be made in reliance on any of the information contained in this article or in any of the accompanying articles.  The choice of a qualified lawyer or other professional is an important decision and should not be based solely upon advertisements.  Prior results that may be mentioned in this article, or in accompanying articles, do not guarantee same or similar outcomes.

Introduction:

Last I checked, … competition across brands has neither decreased nor decelerated.  In fact, brand marketing departments deploy increasingly varied and complex strategies just to keep their brands relevant in ever-evolving B2B and B2C marketing environments.  Digital platform short videos are often key components of such strategies.  That is, contemporary uses for audiovisual works as part of marketing activations go way, and I mean wayyyy, beyond just TV commercials and full-length online ads.  For example, many brands or 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 223,000 subscribers, 610 videos.  Then there’s Lockheed Martin with 250,000 subscribers, 1,147 videos.  Lastly, GoPro has 7.94 million subscribers, 2,115 videos.

Meaningful branded videos published via digital platforms such as YouTube, Instagram, Facebook, and the like are growing more and more indispensable.  Brands either join-in- or they fall behind.  However, fueling social media outlets with sustained volumes of branded visual content isn’t cheap, which is causing brands to increasingly organically handle social media content production and placement in-house.  Unfortunately, due to no fault of their own, personnel of in-house marketing departments and agencies are not always well suited to identify and handle business and legal affairs issues related to the production, intellectual property management, and publication of audiovisual content for social media applications.

Over the course of five native advertising articles, I will discuss, in general terms, some of the business and legal affairs issues concerning the following: (i) audiovisual (“video”) production and use, (ii) risk reduction and mitigation related to audiovisual production, (iii) legal compliance related to the publication (distribution) of audiovisual content, (iv) the engagement of endorsers/influencers, and (v) legal compliance related to the publication of endorser/influencer content.  The present article is the first in the series and concerns audiovisual production and use.

About the Author:

Kurt R. Klaus, Esq., is a Partner at the law firm of Dunlap Bennett & Ludwig, PLLC, where he heads the Media/Entertainment Law Section.  Kurt regularly functions as lead attorney on domestic and international transactions involving many of the world’s leading media companies and provides creative and practical guidance with related legal and business strategies.  He has been legal counsel to top world brand corporate marketing and social media departments, television networks, content production companies, musicians, and music composers.  Prior to practicing law, Kurt produced television commercials, was an executive in two mid-sized media production and distribution companies, and earned a Master of Science degree in Communications (Advertising Emphasis).  KKlaus@DBLLawyers.com, www.DBLLawyers.com.

Make Sure You’re Able To Use What You Pay For:

Project budgets and creative – traditionally these have been the central concerns related to the production of media content in support of brand marketing initiatives.  Traditional in the sense that brand marketers have typically hired third-parties to produce and deliver content that captures and relays branding concepts- subject to “on brand” restrictions and a budget cap.

Today’s brand activations publish ever more video assets direct to digital platforms.  To control related costs 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 marketing opportunities, there likewise arises a concern:  ensuring the brand has commercially vetted and secured rights in order to actually use the content as produced with no, or at least acceptable, business risk.

Although at first glance, … it seems obvious, … right?  If a brand develops creative and produces content based upon that creative, … then it should be able to use that content with no problem.  But wait, not so fast.  If intellectual property rights associated with the media content aren’t properly secured by advertisers, then at best the media content cannot be used until a solution is forced, or at worst a multi-party expensive litigation is involved.  In order to mitigate these possible downsides, today’s brand marketing departments, agencies, and social media managers would do very well to engage knowledgeable media/entertainment business and legal affairs counsel to structure and assist with in-house and closely directed content production efforts.

Properly securing intellectual property rights usually involves establishing a “package” of properly prepared and executed contracts and a system for control and review of such matters.  For example, generally, unless a brand’s regular fulltime employees handle all media production work, agreements must be set with various content production service providers (e.g., production companies, still photographers, music composers, audio recording studios, on-camera talent, animators, writers, voiceover artists, graphic artists, and the like).  Even if so-called “stock footage,” “stock music,” or “stock still” suppliers are used, pertinent licensing agreements should be reviewed by legal counsel because often times while the footage or still photos offered for licensing may themselves be cleared for use, the elements and rights captured in such images may not be included (e.g., individuals in the photo) or may only be cleared for limited purposes or uses.

Likewise, if preexisting music is used, there are at least two separate copyrights to consider and clear, likely more.  Often times, it is actually more advantageous for brands to commission original music and own it; but again, such commissions must be precisely executed to work properly under applicable laws.

Finally, should trouble occur during the content production process, properly designed agreements will allow brands to terminate contracts with minimal cost exposure while retaining all rights and access to elements and materials developed and produced prior to termination.

Properly engaging in media content production and securing intellectual property rights are very doable, yet potentially complex, undertakings.  If you are involved in content production and distribution and have questions concerning any of the information provided in this advertisement message, please contact Kurt R. Klaus, Esq., at Dunlap, Bennett & Ludwig.

Kurt R. Klaus, Esq., Dunlap Bennett & Ludwig, PLLC, KKlaus@DBLLawyers.com, www.DBLLawyers.com.

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