BYOB: Be Your Own Broadcaster (and Studio) –What to watch out for in content creation and distribution

2017 is starting to look like the year of DIY content creation and distribution. Companies are becoming their own studios and broadcasters at a seemingly record pace. If your organization doesn’t already have its own channel or stream, there’s a good chance someone is at least considering making it happen. We work hand in hand with clients as they move into this space, and here are some important things to take note of and plan to address:

• Consider rights clearance from the start. Your legal team should be intimately involved throughout the content creation process. This is important to help make sure content doesn’t interfere with third party rights, to obtain permissions or rights as needed or appropriate, and to secure your organization’s own rights in its content. It can be helpful to have and enforce a set of content creation guidelines that address topics like use of music, celebrities and other talent, your own trademarks, as well as third party marks. If the content is created off-site, consider whether a location release and related rights are needed.
• Hiring talent and production services triggers specific issues that may not come up in other contracts, such as morals clauses. Also, consider whether your company will sign on to become a union production house or hire union talent – and be sure to examine union rules and payment requirements before you do.
• Develop template agreements to help make the process more efficient – for example, for use of third party content, influencer engagements, and work for hire arrangements.
• Existing rules still apply – plus some additional ones. Consider the purpose of your content – to educate, to promote, some of both, or for something else. Chances are that traditional advertising laws, such as Section 5 of the Federal Trade Commission (“FTC”) Act and the state “mini-FTC acts”, as well as content-specific and industry-specific laws and disclosure requirements, will all apply. In addition, there may be new issues to address, for example those triggered by third party endorsers, which require you to comply with the FTC’s or other regulatory guidelines and rules. Internal guidelines can be important, for example, about employee’s use of social media to share and comment about your company’s content.
• Analyze the application of federal and state consumer privacy laws, which may require providing notice to consumers about how their information is collected while accessing content, as well as where and how the information will be used and disclosed.  Opt outs may also be required. Additional issues are triggered by “addressable TVs” - the ability to engage in targeted advertising through content viewed on smart TVs and similar devices. Potential application of the Video Privacy Protection Act should be carefully considered, as well. And if the content targets or even relates to children, those issues should be thoroughly addressed.
• Consider FCC guidance and any related developments. The scope and application of the FCC’s rules and regulations may evolve.
• Analyze how the Americans with Disabilities Act applies, including whether your platform is appropriately accessible to those who are disabled.
• Look closely at your existing insurance coverage to see whether expanded coverage is needed for this new activity.As you can see, entering into the content creation and distribution space presents a new set of issues for you and your organization to address. Please contact Heather Nolan or anyone else on the InfoLawGroup team if you can use help in this new frontier.