Vine videos may well be the summer trend of 2013. Social media users love the spontaneous nature of the 6 second videos, and brands have taken notice. A recent survey conducted by Unruly Group Limited shows that companies now use Vine about 4 times more than online videos to market their brand.
Vine’s Terms of Service
Vine’s Terms of Service are similar to many other social media platforms. Vine does not own user’s content, but instead requires that users grant them a “worldwide, non-exclusive, royalty-free license (with right to sublicense).” Furthermore, Vine reminds users that it is not required to monitor or control what users put up on the site, nor will it be liable for any damages incurred from users who post content. Users must police their intellectual property on Vine and cannot depend on the service to find infringing content. These terms of service are not unusual, and yet, the format of Vine seems to accentuate the legal risks.
How User-Generated Vine Videos Create Risk for Brands
As with most social media, Vine videographers rarely seek permission to post their creations. Brands need to exercise caution in accepting Vine videos on their own social media pages. Vine videos could expose a brand to allegations of trademark or copyright infringement, defamation, violations of rights of privacy, or misappropriation of other third party rights. Of course, there is nothing new here. These same risks exist with all user-generated content. Still, something about Vine’s 6 second video format encourages users to take more risks, share ubiquitously, and ignore the prime directive for all social media, namely think before you post. In addition, because most Vine videos are automatically public, a brand cannot vet the posts before they appear on its social media pages.
Furthermore, the “revining” capability introduced earlier this month gives users more flexibility, but also increases the chances of copyright infringement disseminating quickly. In addition, websites such as VineRoulette and VinePeek allow users to create Vine collages. The collage technology exposes brands’ copyrighted material to unauthorized distribution. These distribution techniques, thus, put Vine on an equal footing with Pinterest in terms of the copyright risks for brands. Indeed, while a tweet of 140 characters is unlikely to be protected by copyright (see my article on this subject), a Vine video of six seconds very well may be copyrightable because of the pervasive creativity some users show. If a brand were to accept user-generated content in the form of Vine videos, it may find itself connected to problematic content.
Fair Use of Copyrighted Material on Vine
Prince’s recent takedown notices for Vine videos are a case in point. Prince is known for aggressive Internet policing tactics and has challenged the use of his music in the background of a half-minute YouTube video in the ongoing Lenz lawsuit in California. In a recent DMCA takedown order, Prince and his record label NPG Records requested that Vine remove eight video clips that were allegedly unauthorized recordings of his concert. At least one of those videos consisted of six disjointed seconds of Prince music at SXSW, and the poster meant to capture the atmosphere at the conference and not focus specifically on Prince’s music. While it appears that the Vine posters did not contest Prince’s takedown notices, legal pundits debate whether Prince made appropriate use of the DMCA and evaluated the possibility of a fair use defense, as required in a recent decision in the Lenz lawsuit.
Had any of the Vine posters contested Prince’s takedown notices, we could have seen a test case on what constitutes fair use on Vine. Even with a fact-specific inquiry, such a case could redefine fair use in social media as opposed to other media. In the meanwhile, brands need to tread cautiously when relying on the fair use exception to copyright law in accepting Vine content from customers or creating their own content.
Best Practices for Brands on Vine
Brands wanting to make use of Vine should adhere to the following best practices:
- Your Vines are commercials and require the same kind of copy clearance a television advertisement would require.
- Obtain clearances that specifically include Vine from models, actors, copyright and trademark owners, and any other third party rights holders.
- Remember that third-party licenses likely expire and docket the deadline for taking down your brand’s Vine videos to avoid being in breach of contract.
- Use actors who are non-signatories to SAG-AFTRA to avoid union problems. While we have not heard anything dispositive on Vine videos being seen as commercials, good arguments exist.
- Make sure that you have vetted your videos for advertising claims and required substantiation. Vine’s format lends itself to implied advertising or comparative advertising claims that require substantiation.
- Beware unauthorized celebrity use in Vine videos or liking a celebrity feed in a manner that implies endorsement. Be sure to comply with the FTC Guides on Endorsements and Testimonials. (See more discussion here of these guidelines.)
- Comply with Twitter’s terms on prize promotions since Vine does not have its own.
- User-generated Vines may present copyright and other third party problems, as explained above. Think carefully before accepting Vine videos from customers on your social media pages.
- Be aware of the text space-constraints in Vine videos (140 characters) and ensure compliance with the FTC’s recently published DotCom Disclosure Guidelines when using endorsements or promotions.
- Consider whether you want to be the test case in a fair use defense lawsuit before using any of Prince’s music or any other copyrighted material from a litigious owner.
These best practices are likely to evolve over time, particularly with competition from Instagram and as the Vine platform develops and the marketplace matures.
© Kyle-Beth Hilfer, P.C. 2013
DISCLOSURE: This article does not constitute legal advice. If you have specific questions about using Vine, please contact this post’s author or another attorney.