Is Branded Content Protected By Fair Use?
How protected is branded content? If a brand maintains a lightly branded news site, is it protected by Fair Use Doctrine, which allows for legal excerpting of copyright materials as long as the use falls within a few parameters, like parody, research, and news reporting? What if it hires real journalists, and acts in every way like an independent media entity, including selling ad space? If The Washington Post were renamed The Amazon Post, would it then lose all its protections and be subject to advertising laws? Should it be?
Three years into the brand publishing boom, these seem like questions that should have been answered… but they haven’t been. Soon enough, though, there will be a lawsuit that clarifies this for us, and it’ll likely be brought on by one of a few factors:
1. Branded content programs behaving like protected media
Brands’ lawyers used to strictly enforce the same rules to content that they enforce on ads and other pieces of marketing communications, but increasingly, that’s not the case. From conversations with the editors and managers of branded content programs over the past few years, I’ve learned that some of the largest programs behave as if they’re protected by Fair Use. You can almost smell the lawsuit in the air.
2. Sponsored content assuming protected media
More and more publishers are turning to sponsored content as a way to monetize, and they sometimes assume that their sponsored editorial operates under the same rules as the rest of their content. This seems destined to get a publisher and brand in hot water.
3. Recently converted journalists assuming traditional protections
There’s been a flood of journalists and editors moving into the branded content space. (I’m a converted journalist myself, and I think I’ve hired some of the best). Some are starting to do legitimate investigative journalism on behalf of brands, and likely assuming that they enjoy the same first amendment and privacy privileges that they did in their former careers. But do they? No one is really sure.
4. Amateurs and idiots behave like protected media
I thoroughly enjoyed a recent blog post from a defensive content marketer who got all huffy about receiving takedown notices from a photographer who had the gall to insist he not use her photos on his clients’ websites without permission. Yikes. To be fair, some of this willy-nilliness is coming from smaller content shops, working for small brands, and there aren’t always lawyers or trained editors in place to inform the client that what they’re producing is illegal. These mavericks might be the most likely candidates to bring this issue to a head.
Many content marketers are dreading the day this issue comes to court, but personally, I’d prefer a bright legal line between marketing communications and our news media. As the owner of a content marketing agency, it hinders me a bit to conform strictly to advertising law in situations where Fair Use might have led to better content. But as a news consumer and a content creator, I want to know that the news media has both protections and advantages, and I definitely want control over how my own creations are used or not used by brands.
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