Legal Pointers for Promotional Content

Creating promotional content across different media platforms takes a lot of hard work, skill and creative resources. Don’t let all that go to waste just because of a few legal hurdles you might bump into inadvertently. Here are a few simple pointers to help.

This image was made by the author of this site.
This image was made by the author of this site.

What kind of pictures and art work can I use?

If you’ve specially commissioned art work or photographs to be used in your promotional poster, video or flyers then chances are you are not appropriating some one else’s original work. All you have to remember is to seal the deal with the artist you’re working with by paying them and informing them that you will be using their work for promotional purposes.

If you’re indie or on a budget, then hiring someone to create art work might not be your preferred option. In that case, ensure that you take an artist’s permission before reproducing or adapting their art work/ pictures. Unauthorized usage of someone else’s work qualifies as copyright infringement, so get permission before use.

Another cool source for art work and photographs is the Creative Commons. While looking for visual content on sites such as Flickr or Wikimedia Commons, make sure you take a quick look at the license to see whether or not you can use the visual work for your posters, videos, business cards and so on. (You can read about Creative Commons here).

DO NOT simply use pictures you have found via an image search engine. You might think you can get away with it, but if you’re promotional content gets a lot of attention (which is what you hope for), there’s a good chance the art work’s original copyright owner will want to ask you to pay a penalty amount in addition for a license fee for having made unauthorized use of his or her work.

What if I took pictures to be used in the promotional material?

Go ahead. Just try and make sure of two things:

(a)   If your picture has people in them, you may want to check with them if it’s okay to feature them in your promotional content and

(b)  If you have a branded product being displayed or incorporated in your picture, try and make sure that the product is not shown in a bad light and try to blur out the brand name.

Seems a bit extreme? Not really. When using people (especially if you haven’t hired them to pose for your work) you need to ask them if it’s okay to photograph them and then use their pictures. Failure to do so can open up the possibility of legal action against you on the grounds of privacy and defamation.

When displaying a brand, you might attract trademark law into the picture. The law does not want to see consumers and customers confused, so if your art work seems to suggest that your service/product is affiliated with a brand, when in fact it is not, you can be pulled up for misrepresentation.

What kind of slogan can I use?

You can be witty and reference popular brands and culture, but do steer clear of reproducing a popular brand’s slogan word for word. Often slogans are registered trademarks of brands, like “I’m lovin it” or  “Eat fresh”. This means that if you use them without permission, you run the risk of causing trademark infringement. Avoid such expensive mistakes by being creative and honest with your own promotional content (You can read more about the basics of trademark here).

I made a promotional video and now I want to use a catchy song by a pop star. Can I?

No. If the song or sound recording is protected by copyright law, then you are not permitted to set it as the background of your video – promotional or otherwise. License the musical content if possible. If licensing works out to be an expensive option, then either hire someone to make music for you OR opt for Creative Commons licensed music (You can read more about the copyrights of musical content here).

Another very useful option for Youtube based promotional content is to use their free feature ‘Audio Swap’ which lets you choose from their library of license free music.

What if I use a free web based software or web based design tool to create promotional content?

There are a number of internet based platforms and services that allow you to use their digital resources to create promotional video, photographic, musical and literary content. Some websites like Recite This allow you to make art work out of your favourite quotes. Prezi allows you to make presentations using their unique tools for free. Apps like Lapse it let you make time lapse videos from the comfort of your smart phone. With so many different free services, it’s unlikely that the indie artist and entrepreneur will find it hard to locate a budget friendly option to help them create promotional content. However,  it is important to check if the services you use allow you to use content you create with their help, for promotional and/or commercial purposes. Check the terms and conditions page of these services to get a better understanding of what you can and cannot do with content created on these platforms.

Can’t I get away with using whatever I want to? It’s not like anyone is going to know.

It’s pretty easy to assume that because you’re a small business OR a non-commercial, non-profit socially conscious organization OR [insert excuse] you might get away with misappropriating someone’s copyrighted work. What’s worse, there’s always the excuse of “Everyone’s doing it and I don’t see them getting into trouble”. Here’s two basic reasons why all these excuses are just that – excuses.

(a)   Respect. If you’re trying to make something awesome, then try to be honest about it. You gain nothing but bad publicity by stealing, borrowing or piggy backing on someone else’s hard work.

(b)  No Mercy. That’s what the big record labels, film studios and publishing houses will show you if they find out you’ve been using their content without their permission. As someone creating promotional content, you want to make sure it goes everywhere and reaches everyone (a hugely realistic goal especially if it’s digital content). However, the more successful you are at getting attention from potential customers, the more likely your work is going to be discovered by the record labels, publishing houses, studios and artists. In such a situation be warned, these major industry players will push legal action against you, especially if they feel that you’ve somehow deprived them of a potential income source.

For instance, you post a video relevant to your home based jewellery making business. Said video is accompanied by a soundtrack comprising of a hit song by a popular pop artist ‘X’. Now X’s song has been used by other companies, brands, college students and young professionals in their own video content. All this without permission. The fact that everyone else is getting away with it, doesn’t mean that (a) Youtube will not send you a take down notice OR (b) you will get a mail from the record label one day asking you to pay up.

So what do I need to remember?

Be sure you know where your content is coming from. Always.

Do not steal, borrow or misappropriate copyrighted content or another artist’s content no matter how perfect it seems for your own purposes.

Don’t forget to make sure your content is not obscene or hurtful to any religious or community sentiments, lest you be asked to take it down or worse.

Hope this quick post was helpful – it’s based on a number of conversations and discussions that have been had these past few weeks with entrepreneurs, festival organizers and artists alike. If you have any questions or would like to share your inputs on this, then please leave a comment or get in touch via email to talk some more.

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