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CHICAGO-Companies caught up in the YouTube craze are eager to put videos created by consumers on their Web sites and in TV spots-but their attorneys are trying to restrain them long enough to explain the legal pitfalls of such advertising. The consumer clips are typically rounded up through a contest, with a promise to broadcast or post the winners. In a recent Doritos campaign, the winners were aired in commercials during last month’s Super Bowl XLI football game and are still posted online. Winston & Strawn attorney Brian Heidelberger in Chicago said such advertising has become so popular that he’s working on the issue every day. Some 430 clients and industry professionals have signed up so far for a webcast he’s having on the topic this month, he said. Most lawyers are advising clients to wade carefully into the uncharted legal waters, given the potential for copyright infringement, defamation, false advertising claims and brand damage. While some suggest clients avoid it altogether, they’re offering proper protections, too. “The idea of doing that is fraught with all sorts of risks that aren’t worth the business benefit,” said Douglas Wood, a New York-based attorney who is a co-chairman for the advertising, technology and media law group at Reed Smith. “If clients listen, they won’t do it.” It’s a “breeding tank for copyright infringement,” said Wood, explaining that consumers could easily include subtle, copyrighted material, such as a background song. If there is infringement, a company can always take the posting down or the spot off the air, but in some cases the damage may already be done, he said. So far, there have been mainly threats of lawsuits and not many actions because it’s all so new, Wood said. On the false-advertising front, the owner of the Subway brand last year sued sandwich rival Quizno’s over a comparison of the restaurants’ two cheesesteak sandwiches and cited consumer video clips from a 2006 Quizno’s contest. Quizno’s asked consumers to contribute their clips at www.MeatNoMeat.com and then the company posted three of them, according to the lawsuit. Doctor’s Assoc. Inc. v. QIP Holders LLC, No. 06-01710 (D. Conn.). Eventually, Subway withdrew a request to stop the ads and the contest ended, but it’s still seeking damages. Even with basic precautions, such as an agreement by the consumer to give up rights to the clip, companies should realize they’re ceding some oversight, said attorney Kenneth Florin. “If you really want to take advantage of the whole user-generated content trend, you have to be able to give up a little control,” said Florin of Loeb & Loeb’s New York office. Properly screening consumer contributions means having the resources to view hundreds of video clips and eliminate those with material that is false, obscene or infringes on copyrights. And there’s always the chance that an inappropriate clip posted on the Internet could slip through, as was the case with a truck company that accidentally posted a clip criticizing the vehicle, Wood said. “You need to step back and say: What negative impact could this have on my brand?” he said.

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