Viral Content: Monetizing, Exploiting and Protecting Your Content or Media Before and After it Goes ‘Viral’

Authored by:

Justin R. Muehlmeyer

Justin R. Muehlmeyer

Patent Attorney

All Posts by Justin

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Viral Content: Monetizing, Exploiting and Protecting Your Content or Media Before and After it Goes ‘Viral’  

 

So you wake up and realize that the video you posted online of your invention or cute kid or pet was viewed tens of thousands of times overnight – what do you do now?  Virality is as random and unpredictable as lightning. If you are not prepared, you can lose out on a great business opportunity, or worse, put yourself at great risk. These 8 tips will prepare you to make the best of any fame that comes to your content, or if your content is already going “viral”, to provide some wisdom through this incredibly exciting adventure.

 1: Brand your content so it can identify you as the source.

At the risk of stating the obvious, if you didn’t stamp your content with your brand, no one will associate the content with your brand.  It happens all the time – your video gets shared but any connection to you or your business gets left out. Don’t be left out of your own content’s fame!   It is always possible that content will be shared without giving credit to you who published it. To avoid that, embed your trademark in the content itself and/or embed your website, before you publish your content.  Do everything you can to connect it directly to your means of sales!

2: Do not publish anything that infringes someone else’s IP – If you did, you should probably take it down.

If you publish something that contains another person’s IP, and the video goes viral, there is a higher chance that your content will be noticed as infringing.  For example, you risk copyright infringement if there is a song in the background of your video that is not your song, a literary excerpt from someone else’s works, or a photo taken by someone else.  Eliminate such risk by only using content that you created.

But what if it is too late and your content contains unauthorized content of others?  You have two choices: take the risk of infringement and exploit the fame or take the content down to decrease the risk but lose out on the fame.  You should immediately consult an IP attorney to help you decide whether you are in fact infringing someone else’s rights and what the extent of the potential liability is.  You should also immediately figure out whether you can put a stop to the content’s dissemination. Sometimes it is simply too late – the video is already going uncontrollably viral and there is nothing you can do to stop it.  Sometimes it is early enough to stop it by taking the content down. Either way, consult an IP attorney.

3: Do not publish anything you think patentable unless you already filed a patent application – If you did publish, consider taking it down.

In the United States, you are not entitled to a patent if you publicly disclosed the idea and did not file a patent application within a year.  Furthermore, you risk that someone else will file a patent application before you (the U.S. is a first-inventor-to-file system), burdening you with the expensive and sometimes impossible task of proving that you are in fact the first inventor.  In many foreign nations, any public disclosure prohibits you from obtaining a patent. So ideally, if you are disclosing details about an invention or functionality of a product or process, file a patent application before you publish anything about it, or at least consult a patent attorney before publishing content about the invention.  

If the content disclosing your invention is already published, consider taking it down to prevent its further dissemination until you can file a patent application.  This of course might cut off the content’s growing fame, so consult with a patent attorney to see if the extent of the disclosure was problematic enough to stop the content’s momentum.  

4: Perfect your IP rights before you publish, or if you already did publish, do it ASAP.

Your content is likely protectible by copyright law.  While you obtain copyright as soon as you create the content and put it in a “tangible” medium, you should perfect your rights by registering your copyright with the U.S. Copyright Office.  Registration is often an easy process that you can do yourself for a very low government fee – the U.S. Copyright Office has guidance online in its brochures called “Circulars” for particular types of works.  Ideally, you register your content before you publish it, or if you have already published it, register within three months, so you can be entitled to statutory damages and attorneys’ fees in enforcement of your copyright.  Even if you miss that window, register your work ASAP.

The same is true of any branding protectible in trademark law.  Any word, phrase, term, symbol you use in association with the sale of goods and services creates trademark rights.  If you imagine yourself using any word or symbol in your content as a trademark, apply to register the trademark ASAP before someone else starts using the trademark.  Trademark registration applications can be tricky, and you can register with either the federal or state governments depending on the nature of your use, so consult an IP attorney first to avoid wasting time and money on applications that are invalid or that will be rejected.  

5: Do not publish content on platforms that take any ownership of the IP of your content.

Be careful of where you publish your content.  Do not publish content on any platform that takes ownership of your content.  If you do, you will have no control over the content and will not be able to exploit it.  Read the terms of use of the platforms to make sure you own all IP in your content and that you are merely granting the platform a “non-exclusive” license/permission to use the content.  Understand the technicalities of how content is shared on the platform before you publish it there – platforms that easily permit the distribution of content separated from the publisher’s post create a higher risk that your content will move on without you.

6: As soon as you think you might have a viral video, strategize strategize strategize!

Viral content can be a great business opportunity, and every viral moment is unique.  Your content is going viral for a reason – figure out why and make a business of it! Ask as many people as you can why they liked the content.  Perhaps a character in it is funny and could serve as a character for a YouTube series? Perhaps it showcases an idea or product that people want to buy and that you can make and sell yourself or patent so it can be licensed for others to make and sell?  Perhaps it contains a catchy message that you can commercialize on through merchandise? Whatever the case, brainstorm! And talk to an attorney about how you can make a reality of your ideas – often times, such commercialization schemes require securing IP.

7: Exploit the viral content itself.

If your content is going viral, you can exploit the content itself.  Advertising revenue will not get you rich, even for incredibly viral videos getting millions of views, but advertising revenue might be worth your time.  For example, one YouTube video maker says YouTube pays him about $500 per month for advertising revenue on a video that has about 2 million views gained over a six-month period.  Don’t delay – look immediately into obtaining sponsorship or advertising revenue on the platform you published the content on. Most content’s popularity dies out quick, the typical life span of virality lasting only weeks or at most months.

Better yet, consider partnering with a content licensing company.  If your content has gone seriously viral (millions of views), you probably have already been contacted by content licensing companies.  They typically offer viral video owners a majority cut of licensing revenue of the content in exchange for the exclusive right to license the content to others.  Some of them have well established connections with media networks and can maximize your content’s potential, taking care of the hassle of promotion and negotiation for you.  Choose wisely – explore their connections and success stories. Beware of scams – reputable content licensing companies will not require you to pay an upfront fee to sign on. In any case, have an IP attorney review the licensing company’s proposed agreement to make sure you are not giving away more than you intend.

8: Keep the excitement rolling and harness the fame.

Virality stops as fast as it strikes.  Your content will soon be forgotten and those views will slow.  But there are ways to prolong the momentum, even past the content’s fame.  Perhaps the viral moment itself is newsworthy with your local news station and you can tell your community about your viral experience, reminding your local community of your business?  Perhaps the viral moment can help you convince investors of a great product idea related to the viral content? Perhaps you or your content licensing company can get you interview spots on national networks?  Perhaps you can create a website just for the content itself to tell more of the story behind the content and promote it further? Be creative.

As a full service Intellectual Property and Commercialization law firm, Peacock Law can help you get the most out of your content, either before it goes viral or after.  For a fast response to your viral moment, contact Justin Muehlmeyer at JRM@PeacockLaw.com or (505) 998-6117.

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