So you’ve decided to raise money for your creative project through crowdfunding. You’ve researched different crowdfunding methods, chosen a platform that fits your needs, and determined your financial goal. Now it’s time to start filming your promotional video, right?
If you ask a lawyer, the answer will most likely be “not so fast.” While crowdfunding is a much simpler, more straightforward way of securing funds than, say, approaching a film studio, there are still practical, legal considerations you should be aware of, particularly when it comes to your promotional video.
Ultimately the video you create to tell your project’s story will be one of the most important aspects of your crowdfunding efforts. Successful campaigns very often have well made videos that may even end up going viral, reaching millions of viewers. As you’re planning your video, here are some things to keep in mind.
Music and Images in Your Crowdfunding Video
Music can be used to evoke all sorts of emotions from your potential backers – excitement about your project, enthusiasm about and trust in your team, and so on. You may want to incorporate a currently popular hit song or a nostalgic classic from your favorite decade, or you may want to insert a clip of a blockbuster movie or video game screen.
Before you do, however, determine if anyone owns the rights to the music or film you’re interested in and, if so, who the owner or owners are. This last piece is very important — the American Society of Composers, Authors and Publishers (ASCAP), a nonprofit organization that manages the copyright licenses and licensing fees of its members, strongly advises anyone interested in using a protected song to “contact the song’s publisher and possibly the artist’s record label to negotiate the appropriate licenses with them.” In the case of a movie clip, the movie studio is the organization to approach.
It is a good idea to receive permission to use someone else’s material in writing, in case your crowdfunding platform requires proof of the license at some point.
If you fail to get permission to use another’s work, your project may be taken down or even cancelled, or worse, you can face legal consequence. Kickstarter.com, a popular crowdfunding platform, on its Frequently Asked Questions page, states, “[u]sing copyrighted material is almost always against the law and can lead to expensive lawsuits down the road.” Now, don’t let this scare you – they are giving the worst-case scenario as a warning. But do heed the advice.
If you’re not interested in or willing to seek out the copyright owner(s) of your desired song or film, Kickstarter suggests you “create all the content yourself or use content that is free for public use.”
If you’re not interested in or willing to seek out the copyright owner(s) of your desired song or film, Kickstarter suggests you “create all the content yourself or use content that is free for public use.” Doing this would, admittedly, help you avoid potential legal issues down the road and allow you to focus on creating an engaging and successful crowdfunding campaign.
Note that these same considerations apply to using images in your video – like music, still and moving images are protected under copyright law and an image that is subject to such laws requires the permission of the copyright holder before it can be used for commercial purposes.
Further Use of Protected Work
If you choose to use a protected work in your crowdfunding video and get the appropriate permissions, your next question might be, “I really love this song/image – can I now use it in the actual film I’m working on?” Of course, a lawyer will typically answer, “it depends.”
If you really want to use the song for more than your crowdfunding video, try to negotiate something with the copyright holder when finalizing the terms of your license. The copyright holder may allow you to use it for multiple purposes or may limit your use solely to your promotional video. At the end of the day, make sure the terms are clear and understood by all parties so that there are no last minute surprises.
Your video is protected, too.
On the flip side of this coin, remember that the video you create to promote your crowdfunding campaign is your original work. So, while you may need permission to use a protected song or image, you ultimately own the intellectual property to your video.
This is important particularly when such videos go viral. What starts out as a mere means to an end can become an Internet sensation in and of itself, spurring spin-offs, spoofs, and even imitations. While initially flattering, you should protect what set your video apart and made your campaign successful in the first place. Luckily, copyright law is on your side. Your video script, any original music or images, and ultimately the video as a whole are automatically protected when you record and publish on the crowdfunding platform you choose. This means that if someone is using your original content without your permission for commercial gain, you have the right to take legal action.
Kickstarter’s Terms of Use, for example, state that other Kickstarter users do have the right to use content on the Kickstarter website, which includes videos uploaded to campaign pages, but only for “personal purposes” and not for “commercial purposes.” The site defines a commercial purpose as the intent to “use, sell, license, rent, or otherwise exploit content for commercial use, in any way.” In other words, no one can make money off the content you upload to Kickstarter, be it text, video or otherwise.
Is crowdfunding commercial?
Finally, this begs the question of whether crowdfunding videos and campaigns fall under commercial use. The short answer to this is yes, if your video is being used as a means of promoting or obtaining funding for your creative project. While the video itself isn’t a direct source or revenue — people don’t need to pay money to see it — it is very directly tied to your fundraising campaign, which is inherently commercial.
Tying It All Together
So, what are the major takeaways? First, make sure that the music or image(s) you use in your campaign’s promotional video are your own original content, available for public use, or permitted through license. Second, if you do obtain a license to use protected work in your video, make sure to be clear with how you want to use it – in the promotional video, the full-length piece you’re working on, a combination thereof or elsewhere. The best thing to do is to be explicit up front and avoid legal complications in the long run. Third, remember that the content you upload to your crowdfunding platform of choice is protected, too. If someone wants to use it for commercial purposes, that person needs your permission in writing.
These guidelines are not a substitute for real legal advice, so if you have serious questions about using a song or image, found someone using your content for their own commercial purposes, or have any other legal questions, contact a lawyer for some clarity.
Roman Zelichenko, based in New York City, is a business consultant with intellectual property experience, and has drafted legal opinions and articles on the subject. Mark Levy is an award-winning amateur movie maker and intellectual property attorney based in Colorado.
