Entertainment Law and YouTube – key contract and intellectual property considerations for filmmakers
Entertainment Law Essentials and Intellectual Property Rights Considerations for YouTube Contributors
I’m stating the obvious when I say that YouTube has long become a global platform for content creators. YouTube Creators were among the first to start exploiting their particular brand of content and turn it into all kinds of other formats – from merchandise through to podcasts.
As would be the case for all mediums and methods of content exploitation, there are some key considerations – beyond respecting YouTube’s own terms and conditions - which anyone managing creating content for YouTube should bear in mind. In this blog I am not going to analyse YouTube’s terms and conditions for YouTube Contributors as these terms and conditions are subject to change. Please make sure you read them thoroughly before you upload anything (that should go without saying, but we’re all sometimes too busy to read the small print all the time….).
Understanding the Importance of Contracts
Of course, as a lawyer I’m a bit biased – but trust me when I say that contracts are the backbone of every successful production company and every successful film and tv project. They provide the legal framework of everything you do, from acquiring the rights in a book, engaging talent, securing the best locations and, finally distributing and licencing your work once you have found your audience.
Copyright and Intellectual Property (IP) considerations for Filmmakers using YouTube
One important consideration for filmmakers should be that YouTube receives a licence to publish your materials. It’s vital that you read carefully through YouTube’s own terms and conditions in order to understand what YouTube is and isn’t allowed to do. If you are planning on using those materials in another way in the future – for example as the basis of a documentary or podcast, you should think about limiting the materials that you publish on YouTube. That’s because certain distributors or broadcasters might prefer or even insist on you only using materials that have not been published before. If you do want to use YouTube as proof of concept, then you could think about generating a certain amount of surplus materials that you would only use on YouTube and wouldn’t need to use again for your main project.
For example, if you are using YouTube to tell your audience about the subject of your documentary, it’s a good idea to mark those materials that you are using on YouTube – this might come in handy in case a distributor or licensee requires to see a list of materials that have been published elsewhere. As mentioned above, they might require you to exclude those materials from your ‘main’ documentary.
Be wary of relying on ‘fair use’.
Some content creators will try to rely on ‘fair use’. In a nutshell, that concept allows filmmakers, in certain limited circumstances, to publish and use the materials of another party, without that being a breach of that party’s copyright. This concept seems to be more widely interpreted in the US than by British courts. As a general rule of thumb, and if you’re not being guided by a legal expert on this topic, it would be prudent not to rely on ‘fair use’. If you do need to rely on ‘fair use’, I would seek specialise advice on this topic – it will also be crucial that you disclose your reliance on ‘fair use’ to the insurer who will provide you with errors and omissions insurance.
Basic legal considerations when you are cooperating with others to create content for your YouTube Channel
There are other legal and commercial considerations to bear in mind when you are starting to manage a YouTube channel.
If you are collaborating with anyone else, you will need to have a contract in place to regulate who contributes what and of course how any revenue from monetisation would be shared.
As with any contract, there will be certain key clauses to consider:
Rights: who will be creating copyright and who will keep and be authorised to licence those rights?
Responsibilities: who will be in charge of what?
Revenue sharing: How will any revenue you receive through monetising your channel be shared? Which account will be used and how do you ensure an acceptable degree of transparency?
If you are thinking about contracting freelancers to help you in creating your content, then some of the considerations I wrote about in my blog about contracting freelancers will be relevant. You can read more about that aspect here.
If you are using the materials of another person, be sure to have a licence in place with a strong warranty confirming that they are authorised to licence the materials to you and a medium such as YouTube. Similarly, if you are trying to licence the materials you have already uploaded to YouTube as, for example, part of a documentary, be sure to carefully negotiate that licence agreement. It should be clear that those materials have already been published and are subject to the YouTube licence.
Cooperating with brands on YouTube
If you are cooperating with brands there will be more to think about: for example, you’ll need to make it clear to your audience that you are advertising a product or service in your contract with the brand you will need to read their indemnity clause quite closely: who will be responsible for any claims by a third party? I would also check that your contract with the brand includes a confidentiality clause as you might be privy to confidential business information of that brand – equally, the brand might learn confidential information about you, your brand and your channel.
Get help from an entertainment lawyer before you licence your materials to YouTube
If you are thinking about uploading materials to YouTube and you have any questions about what to consider before you do so – or if you need a release form for a contributor or licence agreement with another party, then it might be a good idea to get those agreements drafted by an entertainment lawyer. If you would like to schedule a free initial chat with me, you can do so here.