Legal YouTube Channel Promotion - How not to promote your YouTube channel?
Legal Ways to Boost Your YouTube Channel
Common IP Mistakes on YouTube.
The phenomenon of promoting YouTube channels by unauthorised third parties using trademarks or copyrighted content is increasingly common. Unauthorised third party means a person that uses the intellectual property asset without permission of the owner or without a license from a permitted licensee.
This is mainly driven by economic profit, the increase of video in the power of search, and the rising dominance of YouTube in the online video-sharing social media market has led to a literal financial windfall if you can gain views.
The Power of Video Search
As of August 2023, it was estimated that video content accounted for a significant portion of Google search results, with some studies suggesting that around 70% of the top results for certain queries could be video. This percentage can vary based on the type of search query and the overall content landscape. Google has increasingly prioritised video content, especially from platforms like YouTube, in its search results.
According to leading marketing-related websites, social videos get 1200% more shares than text and image posts combined.
YouTube
YouTube statistics are monumental. There are more than 500 hours of new videos uploaded to YouTube per minute. YouTube has 2.49 billion monthly active user and potential ad reach of billions more.
How Much do YouTubers make on average?
According to online marketing websites, YouTube channel owners earn about $0.018 for each view, which is about $18 for every 1000 views. As of August 2024, the average compensation for a content creator on YouTube is approximately $120,226 per annum or $10,018 per month.
In other words, you have a platform that is potentially providing $10,018 per month of supplementary income to billions of people. YouTubers need to compete to get that visibility to earn those dollars; ergo, enter unethical YouTube channel promotion.
YouTube-Copyright-Lawyer
Unethical YouTuber marketing practices
The two most popular unethical and, in some cases illegal, YouTuber practices employed by YouTube content creators to push their channels’ visibility are the unauthorised use of third-party trademarks; and the use of unauthorised copyright content in a video post.
The unauthorised use of trademarks by third parties
The Trade Mark
Trademarks are signs used to identify the source of a good or service. You can own a registered or an unregistered trademark. If your trademark is registered then it will cover a class or a number of classes relating to the use of that trademark for your activities. To be protected against the use of a registered trademark by a third-party infringer, the unlicensed use needs to be covered in a class that covers the activity for which it is being used without permission.
YouTuber Infringer
The YouTube infringer is usually a competitor, someone with a grudge or someone trying to promote the visibility of their channel off the back of the reputation of the trademark. As we know, more visibility means more money. The YouTuber infringer will promote the video and therefore the channel by using the trademark in the Title and Description of the video.
Reputation
If the trademark owner has registered the trademark in the correct class and has a reputation and goodwill with the relevant public including in online marketing then it has a reputation under trademark law.
Use In The Course of Trade
Use of the trademark however must be in the course of trade. Use of a sign which is identical to the registered trademark in its Title and Description tags of the video concerning goods and services which are identical to those for which the trademark is registered is infringement (section 10(1) of TMA 1994).
The exact meaning of “use in the course of trade” has been tested already several times in the courts. It appears that the test applied as to whether there is “use in the course of trade” is a wide one. Almost anything that is not private use is “use in the course of trade”. However, each case is to be taken independently on the facts in that particular case when interpreting whether there has been “use in the course of trade”.
Liability
If the grounds for liability for trademark infringement are made out then a claim may be brought for the use of a sign which is identical or similar to the trademark concerning classes of the goods or services for which the trademark is registered.
Directors Liability
In certain cases, the personal conduct of the directors concerning the YouTube video, in directing and procuring the infringement of the registered trademark is sufficient to create the situation within which those directors can be considered by the Courts to become jointly liable, with the company, for the infringement.
See Grenade (UK) Ltd v Grenade Energy Ltd and another [2016] EWHC 877 (IPEC) (4 March 2016); Unilever Plc v. Gillette (UK) Limited [1989] and CBS Songs v. Amstrad Consumer Electronics Plc [1988].
Using Someone else’s content in your YouTube without consent
To post a video on YouTube, you need to either own the copyright of the content or be legally authorised to use the content. UK copyright law is governed by the Copyright Designs and Patents Act 1988. We have written several blog articles on the copyright liability of content creators please check them out below.
Articles on online copyright content: Protecting Your Brand Online; YouTube Copyright Strikes
Conclusion
YouTube is a big deal. It is fast replacing offline broadcast channels as the focal point for the public’s consumption of all content from news to entertainment. The unlawful use of trademarks in Google Ads advertising is well known and the law is established See Interflora Inc. v. Marks and Spencer plc, [2014] and Dr Martens v Temu [2024]. Third-party YouTuber use of trademarks appears to be less well-established. No doubt there will be several more cases as YouTube grows as source of finance for a large swathe of the public. The law needs to catch up to the subtleties of these platforms to provide a system of justice that is fit for purpose.
To obtain a quotation please contact us on (020) 7305-7491 or at petert@pailsolicitors.co.uk we would be delighted to assist you. The writer is an Internet and digital technologies + entertainment law specialist, owner and principal solicitor at PAIL® Solicitors. Peter Adediran's specialist niche areas of practice are digital media business SMEs and IP, both contentious and non-contentious.