Can My YouTube Video Get Fair Use?

Dear Rich: Can you check out my video and let me know if I can get fair use?
We can't tell whether your video qualifies as a fair use because Viacom has "blocked it on copyright grounds." We also can't tell you the basis for the YouTube takedown --  this article explains the possibilities (and this one explains YouTube's Content ID system). We do hope Viacom considered fair use before issuing the takedown -- here's why. As for fair use, here are the rules used by judges and summaries of some of the cases.

My Boss Made Me Appear in Yelp Commercial

Dear Rich: My employer at a small law firm has required his whole staff (about 8 of us) to appear in a Yelp commercial video. Please note that all the employees had no choice but to do it, and although we signed a release, no consideration was provided in exchange for the release. The day of the shoot, we all signed a release form (no one had to actually read it - just told to sign). My employer wanted me to speak on this video, even though I didn't want to. I was told we will get to edit prior to posting it on Yelp. I reluctantly spoke (and did a bad job so I could get edited out). I asked to view it right after my employer filmed me, and he said he was short on time, but that I could make edits to the final version. When the final version came out, I asked that very first day to be edited out on the part where I am speaking one-on-one (something that could easily be taken out without altering the rest of the company video). My employer kept saying "think about it," and that "I'm so pretty blah blah blah ask others opinion on it before wanting to be taken completely out." I told him its a personal choice that I don't want my face, name and video on the Internet so please remove it. Then two weeks later I saw that the final version still included me in it - and I requested over and over again not to post it until he removes me. He refused saying, "the window to edit is now over, and I'm too pretty to be cut out." I got upset and said I want to be cut out immediately. His response, via text, was: "You signed a release. You work for me. Case closed.” What do I do!? I don't feel comfortable and I feel violated! I know this will ultimately cost me my job, but this just isn't fair. I shouldn't be forced to be in it when so easily I can be cut out!
We sympathize with your predicament. Nobody wants their image used for purposes of commercial endorsement without consent. The purpose of a release -- assuming its drafted properly -- is to grant consent. We think that you're in a tough spot and may be bound by the terms of the release. Most courts consider a written agreement as the "final" statement on the deal and your release may even have a clause entitled "Entire Agreement" or "Integration" that guarantees this result. The fact that you didn't read the release (or were advised not to bother) does not excuse you from the obligation.
Duress? You also imply duress -- that you were pressured to sign. In a sense you describe a form of economic duress. That is, you'd lose your livelihood if you objected. But to prevail on a "duress" argument under contract law, you would  likely need more evidence of physical or mental coercion to demonstrate that your consent was not voluntary.
Consideration. As for additional consideration to sign the agreement, that's a tough call and may depend on your state law. In some states, such as Pennsylvania,  additional consideration by at-will employees may be required for certain agreements. In other states, like Wyoming, Colorado, and Ohio, it may not be required for contracts that establish non-competes (that is, keeping your job is sufficient consideration). (We're also not sure how much of this legal minutiae matters as we're assuming you don't want to take this matter to court.)
You're so pretty. We find your boss's comments about your appearance, such as "you're so pretty," as troubling but by itself, not enough to form the basis for a lawsuit.
For more information on using employee photos in social media, you may want to check out this blog post by one of our favorite employment law experts.

Fraudulent Kickstarter Company? Do They Own My Video?

Dear Rich: I was contacted by a start-up company to make them a video for a Kickstarter campaign they were putting together. The contract mentioned nothing about ownership of licensing of the video; only that I was being given 1% equity of the company in exchange for unspecified trade. A friend of mine agreed to act in the video, under the condition that she would have the right to approve of disapprove the final edit. So we shot the video, and under increasing pressure from the company, I gave them a copy before any release form was signed by the model. They published it to Kickstarter. Then, I learned via someone in the company that the CEO was using an alias and upon searching his real name, it soon came to light that the CEO has a lengthy criminal record. So my question is if a contract is signed with an alias by the acting representative of the company, with the obvious intention of hiding a criminal background, does that constitute fraud and would I have sufficient cause to sue the company for monetary damages amounting to the value of the work I produced. Would a video produced "for hire" based on a fraudulent contract still be considered the property of the party that perpetrated the fraud? As there was never any signed image release/model release, what rights does the model have in requesting an injunction or suing for monetary damages? Having a criminal record doesn't preclude an individual from contracting (or becoming a successful businessman). But concealing a criminal past for the purpose of inducing someone to contract might be fraud. That depends on whether you can prove that you relied on the CEO's deception and suffered harm as a result -- an analysis that will focus on the context of the deceit and the nature of the criminal record.
The remedies. If it was fraud and the CEO duped you into signing a contract (sometimes referred to as “fraud in the inducement”) you can either rescind (void) the contract (which would put you back where you were before the agreement), or you can ask a court to enforce the contract (or “affirm” it) and seek contract damages. In some cases, a claim of fraud can be brought as a tort (not a contract claim), and it is possible for the injured party to seek special damages to punish the bad behavior (known as exemplary or punitive damages”), as well as damages for pain, suffering, and other emotional distress caused by the fraud. In your case, it seems as if rescinding the contract would be the easiest course to take. You give back your 1% interest and the company gives up any claim to the video or you.
The model's rights. We're not sure where things stand with the model. If her image is being used to sell goods and services without her consent, she may have a claim against the company for right of publicity violation. She also may have a contract claim against you since it appears as she entered into the agreement with you, not the Kickstarter company.
Practical realities. Knowing your legal rights is different from enforcing them. If the company disagrees with this analysis, you're facing a wallet-depleting experience chasing an individual or an entity that may be practiced in the art of deception. We'd advise showing all of the evidence to an attorney and getting a legal opinion before starting your pursuit.

Can We Use YouTube Clips for EAP Nonprofit?

Dear Rich: I work for a non-profit Employee Assistance Program and we provide short-term therapeutic counseling for workplaces. As part of our services, we have a small training department consisting of two trainers and a catalog of approximately sixty trainings we developed on a variety of topics. Some of these have small clips, two-to-five minutes, of TV shows, movies or maybe a YouTube clip. With the TV and movies, we never use clips that could potentially spoil the plot or give away a surprise, etc. Nothing that would take away someone's desire to see the show or movie. We're glad you don't give away the plots but unfortunately that won't make any difference for copyright purposes. (Neither will the fact that you're a nonprofit.) If you're using other people's copyrighted content without permission, and it's not excused as a fair use, you're liable for infringement. As always, if it's unlikely that the copyright owners will learn of the use, then the risk to the EAP diminishes accordingly.
What about fair use? Your use sounds transformative -- you're commenting on the clip -- so that would be helpful for a fair use defense. On the other hand, the clips are much longer than what's usually excused (under a minute). Look at the four factors and see what you think, or better yet, check with a lawyer if that's possible. Remember, claiming this defense is not enough to stop a lawsuit. If the other side disagrees with you, only a judge or arbitrator can determine whether it's a fair use.

Using Music in Vine Videos

Dear Rich: It's been a year since the Vine-Prince copyright infringement incident, and I was wondering if anything has changed or progressed regarding having music in one's vines. I ask because I'd like to expand my music criticism blogging to include seven second long real-time critiques of copyrighted song sections. How do the waters look currently, concerning this grayest of issues? Nothing seems to have changed -- at least in terms of Vine policy -- since Prince filed his DMCA notice (and we last wrote about the situation). Vine's TOS prohibits infringing content and permits Vine to remove it "without prior notice and at our sole discretion." That's all standard language for a social media site. However, we haven't seen any news about other popstars chasing down Vine videos. You can sort through DMCA notices at Chilling Effects but a cursory look doesn't reveal any Prince-style complaints. (The notices would go to Twitter, Vine's owner.) We also don't see any indication that Vine is using a Content ID system to flag material.
Is seven seconds a fair use? There are no size, shape, or time limitations that excuse an infringement, although the shorter the segment and the more transformative it is, the more likely it will be excused as a fair use. Your proposed music criticism blog (with seven second snippets) also sounds like a fair use. And if you have a strong fair use position, you can always push back against a DMCA notice. But, if threatened with a lawsuit, speak with an attorney before throwing down the gauntlet.

Do I Have to Pay to Use Public Domain Footage?

Dear Rich: I am working on a potential web series that would like to use material from old movie serials that are in the public domain. The first major issue I'm running into is how to properly source the film. I have found some public domain libraries that charge varying fees depending on the resolution of the movie. The issue I'm confused about is if this movie is in the public domain, what is the advantage of paying the higher fee to get it using the library? Isn't any copy of this film, even on a dvd that's for sale, still in the public domain? In most cases, the production company is doing little more than cleaning up the print for resale, and then copyrighting that process.  If video content is in the public domain, a higher resolution or cleaned-up version is unlikely to merit separate copyright protection (although protection may be granted for a colorized version). (You can review the case law in a previous entry.)
Paying for resolution, not permission. When you pay for high resolution public domain video, you're paying for access to a better quality copy, not copyright permission. Museums employ a similar strategy when they prohibit photos of public domain paintings but license high resolutions images. An additional problem with paying for these processed PD works is that sometimes you must enter into a license agreement to use them, further limiting your right to the material. (We discussed such licenses in this entry.) Generally, you're better off avoiding such licenses.
P.S. The public domain video we "grabbed" for this entry shows the mighty Perceptron - a device with an apparent gender-blending blindspot.

How Many Seconds of Video Equals Fair Use?

(Warning: lots of scatological language) 

Dear Rich: I've created a 12-minute video that consists of short clips from 45 different movies. It's something like a cross between a supercut video and Christian Marclay's "The Clock" or Vicki Bennett's "Gesture Piece". From my long-time reading of Dear Rich, I assume that the video will probably (1) fly under the legal radar or (2) be flattering and harmless enough to not offend the copyright holders. But on the other hand I assume I'd have to rely on (3) a fair use defense if any copyright holder objected to my use of a clip. Is there any better news than that? Most clips in my video are up to 5 or 10 seconds, a couple are 30 seconds long.  Is there any kind sense of how long a clip might be before it triggers a legal issue? We're often asked that question, or its equivalent -- how many seconds of video qualify as a fair use? (And we're asked similar questions about music and books.) The answer is the same for all media; there is no fixed limit that is guaranteed to be safe. The analysis is always case-by-case and usually focuses on three factors:

• how long? (shorter is always more likely to be permitted), 
• how important? (the less important the clip is -- that is, the less it qualifies as the "heart" of the work -- the more likely it is to be permitted) and 
• is it a transformative use? (the more transformative your use, the more likely it is to be permitted).

One way to assess this for yourself is to review some audiovisual cases in which portions of films were used without authorization. We've collected a few at this site. In general, you're correct that you're likely to get away with such uses as the movie studios apparently don't find these snippet collections as threatening to their bottom line. That is, they are more inclined to go after BitTorrent sites and those pirating complete movies.
BTW Dept.  Thanks for getting us to explore the endlessly entertaining world of supercuts. We wanted to include this DeNiro supercut, but it seemed too violent and language offensive for our audience so we opted for the above supercuts classic (which is just language offensive).

Can I Post Music on Vine or Instagram Videos?

Dear Rich: I am the administrator for my church's social media accounts. I would like to post short six-second Vine and fifteen-second Instagram videos of our musicians performing hymns and other copyrighted music. Should I look into buying a copyright license for these videos, or would it be considered fair use because of the short length of the videos? As for buying a license, forget about it (and see our previous entry to understand the futility of that effort). The music companies have made the task of obtaining a sync license impossible for mere mortals.
The good news: As far as we can tell neither Vine or Instagram has a copyright filter similar to the one at YouTube (though that may evolve one of these days). So, it doesn't appear that Vine or Instagram will flag your use of unlicensed material. Chances are also good that a six to fifteen second music clip will be excused as a fair use particularly if you're not infringing the sound recording copyright --  that is, you're not using a pre-recorded song as a soundtrack for your video. Finally, music publishers and/or record companies may not want to pursue this rabbit hole of potential infringement. So, although it may possibly be an infringement, we don't think you'll run into legal problems in the near future.

Can We Make Cover Song Video?

Dear Rich: I'm in a band, that's just starting. We write songs, which we intend to release soon. We were wondering, though, if it would be alright to make some videos of us singing other artist's songs first, and post them online (not to be sold, though), using them as a sort of advertisement. I've tried researching that, and it seems that technically it's illegal, but we don't understand why so many people have done that very thing, and later been rewarded with recording contracts, (i.e. Justin Bieber, Cody Simpson, Christina Grimmie and Greyson Chance). If it's illegal, why does it seem to work for so many people?  First, we're happy you formed a band. It's a great way to make friends (and enemies) and it teaches young people a lot about important stuff like personal hygiene. We're not familiar with most of the artists you mentioned but that's probably why they're successful. In any case, you're correct that it is a violation of copyright law to make a cover-song video without permission. People do it and "get away with it" because websites such as YouTube have worked out arrangements with many song owners. Instead of requiring that the video be taken down, the song owners allow the video to stay up as long as advertisements are displayed and/or run in conjunction with the video. The song owner keeps the money from the ad revenue. In addition, you may find it difficult to embed your cover video outside of YouTube, or as you'll see if you click our cover song above, you'll get a message forcing you to watch the video on YouTube thereby enabling the ads (we love what happens at :54 seconds). We wrote about this phenomenon (sometimes triggered by a system called Content ID) in a previous blog entry. You can also learn more about cover songs and videos by reading this article at CDBaby.

Can We Use Video of Deceased Musician?

Dear Rich: A musician friend recently gave a concert. (Let's call him the Musician.) He was a master of traditional folk music, so the tunes were either his distinctive arrangements of public domain music, or his original improvisations. The Musician was dying, this was his farewell concert, and he passed away about a month later. A friend of his (let's call her Ms. Go-Between) asked her friend to videotape the concert. No actual agreements were made with this fellow, and certainly nothing written. We assumed the Videographer was volunteering his services, as we all are. A group of us, friends of the Musician (including Ms. Go-Between), are actively fundraising to produce the Musician's legacy project: to bring out his unreleased recordings. Our online fundraising offers premiums for donations. When I started up this effort, Ms. Go-Between wanted to offer a DVD of the farewell concert as a premium. So we did that -- and it cannot be changed now as donors have started to claim these premiums. Ms. G-B also wants to use part of the video's audio recording on the future CDs. We're gearing up to do fulfillment of the premiums, in part using the DVD made by the Videographer, and now it gets sticky. It seems that he expects payment for each and every copy of the concert DVD we give away, Ms. G-B agreed. Videographer also claims full copyright on the DVD. It seems that at best there is a dual copyright on this video. One to the Musician's estate, as performer/creator of the material, and one to the Videographer who taped and produced the DVD -- is that right? If we pay him all or some of what he's asking, does he then fall into a work-for-hire category, and thus assign his copyright to the Musician's estate? If he does the right thing and gives it to us at cost (the original assumed agreement), does he then retain his copyright, and have some rights to the eventual music CDs, if his audio tape ends up being used in it? How much money is at stake here? If you are dealing with less than 100 orders, you might want to enlighten the videographer as to total sales of this disk (and that it is not expected to make him rich). You can agree to pay him a royalty based on the disks that are actually paid for by fans (thereby avoiding advancing funds on a speculative basis) You can also offer a lower royalty for rights to the audio recording because the videographer's claims are not as clear with that disk. Get the royalty agreement in writing and have the videographer assign all rights if possible. If the videographer won't assign copyright, get an exclusive license for all of the rights discussed above. A simple agreement describing this arrangement will be fine.
Unrealism. If the videographer is being unrealistic and won't agree to the terms described above, he should be made aware that he will be unable to distribute, stream, reproduce or otherwise exploit the video unless he obtains permission from whoever owns the rights to the musical compositions. That's because the video contains (1) an audio-visual copyright reflecting the videographer's authorship, and (2) a copyright in the original musical compositions, in this case owned by the musician's estate. Based on this second copyright -- as well as any claims that the musician's estate may have regarding right of publicity or similar claims -- the videographer can not duplicate, stream, or reproduce the video or audio without the permission of the respective copyright owners.In other words, he is not the sole copyright claimant to the video.
What about dispute resolution? You can also suggest that the parties proceed to mediation or arbitration at California Lawyers for the Arts. If that fails and you're certain that the videographer will never sue, you can always consider the risky strategy of distributing the disks without permission.
The music CD. Typically music CDs are considered to be "sound recordings" which copyright law defines as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Since your audio CD is derived from sounds accompanying a motion picture, we're not sure what to make of its status. We believe that it would either be considered a derivative work (derived from the video) or would be analogous to a sound recording. If it were a typical sound recording it would be jointly owned by the musician's estate, any other musicians who performed on the work, and possibly the videographer for fixing the sounds. The trouble with the videographer making claims to the sound recording only is that we're not sure that simply placing a microphone on stage, or hooking a direct feed from the P.A. to video camera constitutes sufficient originality to qualify for sound recording authorship. We doubt it, but we don't have enough information to be certain.

Old Band Videos: No Releases

Dear Rich: We have extensive old video footage of bands (a lot of it is over 15 years old) that I have been dubbing and want to try and do something with online and try and make a little cash. The bands were aware we were filming and had the option to purchase the masters, but chose not to. Could these be considered our art as we shot them and physically possess them. Most of the bands are now defunct and it would probably be hard to track them down for a release form, as most of our dealings were verbal agreements. If we start to do new ones, I would get a release from the band, but even if they signed it, would we (video crew people) be able to upload and charge for others to view and or purchase them?  Just thinking about the legal hoops you will have to go through has made us turn up the caffeine drip. (We've set out the legal rules below.) May we suggest another  strategy? Forget everything we're about to say and just do what you want. Unless one of the former band members later became a lawyer (and it happens) or is willing to hire an attorney, chances are likely your posted videos will become just more flotsam on the sea of low level infringements that are either drowning or enhancing popular culture (the grand jury is still out on that one). In any case, based on the odds, you're likely to survive intact. If there is an objection you may have to take down the video (not unlikely), or you may even have to deal with a lawyer (possible, but unlikely). However, what is extremely unlikely is that DOJ helicopters will land on your front lawn, forcing you to retreat to your safe room with a shotgun. (And can anyone tell us what's to become of the copyright of the fabulous MegaUpload theme song?)
Right, you had a question. You probably own the copyright in the videos because you shot them. The band (or their publishing company) probably owns the copyright in the songs (unless they are cover songs). If you want to include copyrighted music in a video, you need what's called a sync license from whoever owns the song publishing. Getting releases would help as you plan to make money from the band's trademarks and the members' individual personas. (BTW, whoever owns or possesses the masters doesn't matter too much; what usually matters the most is who possesses the legal rights.) BTW2, we've answered similar questions before (just type "sync license" into the "Search Dear Rich" box on the right) ...  just sayin'.

Can I Expose Exxon in My Documentary?

Dear Rich: I am making an independent film about life on our ranch with ExxonMobil. I had a blog for a few years and youtube page. For three years, I filmed lots of Exxon activities on the land that is owned by my husband. About a six months into my blog writing, ExxonMobil sued me for tortious interference saying "my shenanigans raised their operating costs" because they had increased inspections from regulators. So, I am aware of how they can be big bullies with their lawyers. However, when I was not intimidated, they just backed off and I kept filming and writing. I never got any releases from Exxon workers or subcontractors but I have the permission of the land owner (my family). Of course, everything has Exxon stickers, etc. I even interview the people working there. Exxon's partners (El Paso Corp) sued me for tortious interference and exposing trade secrets on my blog. But, we made an agreed judgement where those claims were dismissed with prejudice. I am planning to make my movie free and put it on iTunes and the Internet. I have this idea that free speech is more protected than commercial speech. But, I don't know if that is true and where I got this idea. I also think that people are less likely to sue me if they think there is no money in sales to fight over. What do you think? We admire anyone who has something to say and doesn't let other people stop them from saying it. But we're also protective of anyone who calls themselves a Dear Rich reader, so we'll provide the legal rules with a caveat that you're already probably aware of --  free speech will protect your rights, but proving you have those rights may prove to be a burden. There is some recent good news for you. Last month, Texas passed its version of an anti-SLAPP law (as explained here). Anti-Slapp laws even the playing field by stopping lawsuits that are used to censor speech. That law could prove helpful if the claims brought against you are trivial or have no legal basis. Anyway, here are the legal rules.

• Copyright - Because you did all the filming, we don't see much of an issue with copyright. If you are quoting from Exxon's written materials, using their photos, or video, that's an infringement but we think you have a strong fair use claim. However, as we always note, fair use can only ultimately be excused by a court which means you're spending money on lawyers.
• Trademarks - We don't see much in the way of trademark issues. The reproduction of trademarks in an informational film about Exxon is permitted under first amendment principles and we discussed those issues here. These rules regarding informational uses would protect you against claims for trademark infringement and trademark dilution. Our only suggestion would be to avoid modifying the logos.
• Privacy/Publicity Rights - Because your film is a documentary (and it's not a commercial endeavor), you may be able get away without releases as you are skirting right of publicity issues. However, without a release, the people portrayed in your film can possibly argue the film violates their right to privacy, or alternatively, it defames them. These aren't likely claims if you make a fair factual film, but as you know, employees who are concerned about retaining employment may regret their statements or wish to recant them. In your defense, you may be able to claim that their permission is implied by the fact that they talked to you and were aware of who you were, and that the material was being filmed. (In the future, you should consider getting a video release. While the camera is rolling, explain what you're doing and what the video will be used for and ask for authorization to use the material in your film. We explain more of these releases in our Getting Permission book.)
• Trade Secrets - You're familiar with this one. When you disclose confidential business information that you acquired by an unlawful means, a company can claim that you stole their trade secrets. So, if someone has stolen trade secrets from Exxon and they give them to you and you publish them, you could be enjoined (stopped) from distributing them. As you know, this is a gray area encouraging litigation because only a court can ultimately sort out what qualifies as a trade secret. 
• Contract Claims - You're already familiar with tortious interference -- when you're accused of coming between two parties to a contract to undermine their dealings with each other -- another gray area of law in which a he said/she said battle can drag on in the courts. Your settlement agreements may also establish some contractual limitations on your future behavior (although it doesn't sound like it from your description).
• Defamation/Trade Libel -- If you include untrue statements that cause harm to Exxon's business reputation (or to any of their executives or employees), you may expose yourself to defamation claims.
• Likelihood of Being Sued When There are No Profits -- You asked if you were a likely target if you had no profits. Profits probably only matter when discussing copyright, trademark and contract claims. And Exxon may not care about your profits, anyway. They may be more concerned about stopping the film (getting an injunction). You could be personally liable for defamation, right of publicity or other tort claims. Some people who make documentary films attempt to shield their personal assets by creating an LLC or corporation to produce, own, and distribute the film. 

Can I use fashion trademark in movie?

Dear Rich: Please if you could let me know about using the Barney's name (Barney's New York) in feature film and presenting some space as its office. The lead actress gets an offer to work for Barney's from one of the managers, plot goes into different direction, and from her actions we conclude that she doesn't consider Barney's offer any more. So if it's part of the plot at all, it doesn't have a strong point. I would appreciate if you could respond to my dilemma. Short Answer Dept. You're probably fine with your planned use (although you should ditch the apostrophe as it implies you are dealing with purple dinosaurs not the store's apostrophe-free trademark). As we've said before, filmmakers and screenwriters have a First Amendment right to talk about and reproduce trademarks in films. However, such uses may trigger a lawsuit if a displeased trademark owner believes that your film is confusing consumers--that is, filmgoers  mistakenly believe that Barneys New York endorses or is in some way associated with your film.
Creating the fake Barneys office. We believe your re-creation of the Barneys office is permitted under First Amendment grounds but that doesn't mean that you won't get hassled. As you know from reading our blog, there's a difference between being legally correct, and surviving the lawsuit that proves you're legally correct. Re-creating the office may trigger a wider range of objections -- for example, if you accidentally use a character with a similar name as a real Barneys employee in an unflattering manner, or if the film defames management or by implying that working conditions at Barneys violate the law in some way. An apprehension of a trademark's owner wrath can even kill a big-time Hollywood production. As our previous post pointed out, another  problem in situations like this is that if your film becomes a success, your distributors and festival producers may demand releases for these uses. Hopefully, if you're successful enough to obtain distribution, you'll also be able to afford the legal power necessary to acquire the necessary rights.

Does travel photographer need property release?

Dear Rich: I have an opportunity to do some video work for a travel related website distributor. They want video tours of certain cities, highlighting the attractions. I was under the impression that I needed property releases from any property I depict in a video or photograph. Now I'm not sure. The video would have scenes of attractions such as museums, theaters, ball parks, amusement parks, bars, restaurants, casinos, etc. I will limit myself to shooting from public property such as sidewalks. I may also have people in these shots. Where would I stand? The client expects me to sign a contract saying I am responsible for obtaining all releases needed. In the U.S., if you're photographing from public property, usually no release is needed. There are two exceptions: structures such as statues and memorials that qualify as copyrightable works; and buildings that have achieved trademark status. You may not need to worry about either of these exceptions as we discussed in a previous post. If you're creating videos outside the U.S., you should review a principle known as Panoramafreiheit. As for the people in your videos, you're generally fine photographing people in public places as they have no reasonable expectation of privacy. Problems will develop if the website deliberately either: (1) makes these people appear in a bad light -- for example, the travel video has a section entitled "The Amsterdam Red Light District" and shows two tourists who do not work there; or (2) you use screenshots of individuals in a manner that makes it seem as if they are promoting the site -- for example, the website creates banner ads using screenshots of individuals seen in your videos.
Property Release. If you need to obtain a release, here's a standard property release (also known as a 'location release') from our book, Getting Permission. You can use this release for buildings that are copyright protected or are not viewable from public space.
Property Release

He wants to use image from concert video

Dear Rich: I have some old Who videos from a concert about 35 years ago that I took one frame out of and made my own electronic art out of it. While what I created is quite different then the original frame, it is the foundation of my art picture that I am left with. If I were to hang that up or sell it, would I be violating copyright laws. It was from a very old concert and the frame that I used as a my foundation for what I created could have come from anywhere. And, if I am violating copyright, is it really enforceable and/or do you think it would be an issue with anyone if I were to sell this edited image? Short answer dept. No we don't think your use is likely to become a legal issue. As we explained in yesterday's entry, using a single still can constitute infringement though it's usually not likely to result in a lawsuit. The concert film is most likely protected under copyright law as the Who haven't been around long enough to trigger any of the traps that would drop the movie into the public domain -- for example, if it was published before 1964 and not renewed.
Fair Use Dept. It sounds as if you have the makings of a decent fair use argument (although we'd prefer if you didn't get embroiled in that type of dispute). Here's a link to compare your use to other visual arts fair use cases.
Staying out of trouble dept. Are you selling only a single print?  Problems are more likely to develop if you market the work in bulk. So if you're paranoid about being hassled, don't mass produce your prints.

More on using (tobacco) trademarks in films

Dear Rich: Thanks again for the blog post with my question about using trademarks in a film. One of my concerns had been that a Marlboro sign appears in the store where we filmed. I've since tried to contact Philip Morris twice via e-mail, receiving the exact same stock response both times, basically saying they don't pay for or endorse their products in any media. So I was about to call them up when I stumbled on this article on their site, which quotes:

Unfortunately, the fact that we do not engage in product placement does not mean that our brands are never shown. Some producers and directors choose to depict our brands in their work without our permission. But we are limited in our ability to stop all displays of our brands because federal and state trademark laws, as well as the U.S. Constitution, protect freedom of expression and the "fair use" of trademarks in works such as movies and television shows. Our position is clear – we do not want our brands or brand imagery depicted in movies and television shows. The unauthorized use of our brands and brand imagery perpetuates the misunderstanding among some that we pay or are otherwise responsible for these depictions, which is simply not the case. We strongly encourage the movie studios to eliminate references to or depictions of our brands. 

So I'm kinda giving up on asking them for permission, and am just going to include the image in my film. I am contacting other companies to get their permission with great success so far, but I've given up on the tobacco industry. Thanks again for your help!
Thanks for filling us in on this fascinating aspect of trademark practice. There are two reasons for the tobacco company's response. First, the tobacco companies signed a master settlement agreement of a class action lawsuit in 1998 that prohibits payment for placement of tobacco products in films. Second, there's no sense in promoting tobacco products because the tobacco companies are often sued under the theory of negligent advertising. Of course, product placement is a separate (though related) issue from granting permission. However, as we've discussed before, use of trademarks in films is commonly justified under first amendment grounds.