In the age of social media, intellectual property can be murky territory. In this presentation, Primum Marketing Communications, a Milwaukee-based agency, covers social media implications on copyrights, trademarks, patents, defamation and trade secrets. The presentation also takes a look at some Terms of Service and Privacy Policies for several popular social media sites and covers best practices for marketing your brand without crossing the legal line.
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Primum created Manpower’s law blog and wrote this disclaimer.
Only law blog recognized in 2008 Webby Awards, “the Oscars of the Internet” (New York
Times).
3. Is social media worth the risk?
It’s a
bigger
risk to
ignore it.
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Risk vs. reward
Joining or launching social sites is risky.
Staying out of social media is also risky
(legally and from marketing
perspective).
4. 5 Areas to Watch
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Defamation
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Patents
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Copyright
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Trademark
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Trade secret
5. Defamation
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AP reporter Jon Krawczynski tweeted
this during a basketball game in 2011.
Tweet implied the game was fixed.
Referee Bill Spooner was investigated
by the NBA.
Spooner sued Krawczynski for
defamation.
AP settled and paid $20,000 fine.
Watch what you say on Twitter!
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Endorsements are the opposite of
defamation.
Must follow rules for endorsement too.
Federal Trade Commission (FTC)
guideline: when endorsing must disclose
“material connections” – any connection
with the product's maker that might affect
a consumer's purchasing decision.
Can use #sponsored hashtag on Twitter.
The same goes for posting about
yourself/your company on Yelp or
elsewhere.
Defamation (and endorsements)
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You have one year to file for a patent after your invention is first “described.”
Mentioning on social media counts as becoming “otherwise available to the public.”
Examples: posting photo of prototype, tweeting about invention idea
Patents
8. Copyright
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Technically, you can’t post content on
social media that you don’t own.
Instead, click the Share button if you like
someone else’s content.
This video on Primum’s Facebook page
was created by us (original content).
If you save it to your computer and
upload to your page – not good.
If you share it on your page – good.
9. What counts as copyright infringement?
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Library of Congress falls under library exception of Section 108 of copyright law: it is not
an infringement of copyright for a library or archives to reproduce a copy of a work if:
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The reproduction is without a commercial purpose
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The library and collections are available to the public
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The notice of copyright in the original work remains intact
Publishing others’ tweets in a book to sell commercially may be copyright infringement.
Still a gray area.
10. Trademarks
Impersonation vs. Parody
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Name-squatting: claiming a brand or
person’s name on a social site they
haven’t joined yet
Impersonation: acting as a brand or
person on a social site
Parody: special consideration for
parodies
Twitter has a parody policy: Users are allowed to create parody, newsfeed,
commentary, and fan accounts on Twitter if they follow these rules:
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The avatar can’t be a trademarked logo.
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User name must distinguish account as parody (include “not,” “fake” or
“fan”).
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Bio must include a statement about being a parody account.
11. Trade Secrets
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Phonedog v. Kravitz
case
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When Noah Kravitz stopped
working for tech site Phonedog, he
took his @phonedog_noah Twitter
account and turned it into
@noahkravitz, which now has
23,000 followers.
Phonedog sued for his followers,
claimed they were company
property and worth $2.50 each.
Customer lists considered trade
secrets.
Shows importance of social media
policy for employers to follow, offboarding processes.
13. Proactively
Proactively: to prevent it from being stolen in
the first place
• Watermark images.
• Include copyright symbols on your content.
• Post disclaimers on blog/site.
• If your content gets shared, your brand
goes with it.
15. The Digital Millennium Copyright Act
protects service providers on the Internet from liability for the activities of its users.
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DMCA enacted in 1998 to protect service providers from lawsuits.
Safe Harbors – can’t be liable for end users’ activity.
The internet wouldn’t be the same today without it.
DMCA created a process for reporting intellectual property rights
infringement to social sites/services – takedown notices (in other
words: how to tell YouTube that someone posted a video with
your copyrighted song in it).
16. The DMCA provides safe harbors for:
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Providers of conduit communications (ISP)
Those who cache content hosted by another (Google caching)
Those who host content provided by another (social media)
Search engines (Google)
19. Fair Use
a legal exception to the exclusive rights an owner
has for his or her copyrighted work.
If you use someone else’s content, make sure it falls under fair use.
Consider:
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How much of the original work was used
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Whether the new use is commercial in nature
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Whether the market for the original work was harmed
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Whether the new work is a parody
20. What counts as fair use?
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Example of fair use: “stealing” a photo of
a book cover for your blog post, in which
you review that book.
Including the photo doesn’t make the
blog visitor any less likely to purchase
the book (seeing the photo is not the
same experience as reading the book).
In other words, the market for the original
work wasn’t harmed (bullet 3 in previous
slide).
21. Threshold of Originality
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If you have doubts, ask yourself if the original content meets the threshold of
originality.
The original content creator only holds copyright of posted material if the content is
original and the content satisfies the threshold of originality.
Tweeting “that’s hot” after Paris Hilton has already tweeted the same thing is not
stealing content – the phrase does not meet threshold of originality.
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24. Things to Look For
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Who has the rights to content after you post it?
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Do you have the rights to post it in the first place?
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What happens to content if you delete it and/or your account?
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Who is responsible for copyright infringement, defamatory
comments, etc. that you may post?
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What can the social media site do with your information and
the content you post?
26. What’s Public and What’s Private?
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You can control your privacy settings on most social sites.
Settings might be confusing or change often.
Some of what you post can be set to private, other content must be
public (your username and profile picture, for example).
Make sure you know what is public by default.
27. How Private Info can Become
Public
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Shares by approved friends/fans
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Third-party apps are given access
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Social site has access even after you delete content or
account
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Site changes privacy policy
28. Anything you put
online can end up
on social media.
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Even if you don’t use social media, your
content could end up there and even go viral.
For example, a wedding photographer could
post a photo on her blog, and it could get
pinned on Pinterest.
The photo goes viral and gets posted on
various social sites with no attribution to
original photographer.
29. The Internet Never Forgets!
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Even if you take something off the internet, it is
never truly gone.
It could have been saved/shared by someone who
saw it while it was up.
Even if it wasn’t, the internet is cached and archived
– example: the Wayback Machine is an internet
archive going back to 1996.
31. Privacy Policies
Social sites you use may collect your info and use it in various ways. Pinterest tracks your
activity and uses that data to tailor the content and ads you see.
33. Privacy Policies Can Change
A Facebook Case Study
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Most people also don’t read the privacy policy when they sign up
for a new social site.
Clicking “I Agree” without reading it takes the power out of your
hands.
Even if you understand and agree with a social site’s privacy
policy, it can change at any time, leaving your content and
personal information at risk.
34. Facebook has had a lot of
negative attention
surrounding changes to
their privacy policy.
In fact, Facebook started
with a privacy misstep
when Mark Zuckerberg
hacked into Harvard’s
student directories and
posted student photos
without their consent.
35.
36. What social sites do with your info
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Behavioral advertising
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Leak your data to third-party tracking sites
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Sell your contact info to advertisers or spammers
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Tailor the content you see
38. 1. Engage with Social Media
Claim your names early.
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Engaging with social media is good
marketing anyway.
You get to control the conversation.
Claim your brand or name on various
accounts early to avoid dealing with
name-squatting.
Primum has various social media
accounts and engages on Facebook,
Twitter and LinkedIn.
39. 2. Monitor your
Brand
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Social listening is important for nipping problems in the bud – check your reputation,
defuse customer service issues, identify others infringing on your intellectual property
or impersonating you.
Different services do different things – see what people are saying about you,
measure how successful your campaigns are, monitor the competition.
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40. 3. Only Post Original Content
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You won’t have to worry about being
sued or fined or having to take your
content down.
You’ll look more reputable.
Original content is better and more
interesting to your audience anyway.
This photo that I showed you earlier is
Primum’s original content – we took the
photo ourselves, in our office, and posted
it on Facebook.
41. (and protect it proactively
with watermarks,
copyright symbols, etc.)
42. 4. Make a User-Generated
Content Policy
What’s user-generated content?
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43. User-Generated Content
Any form of content that was created by
consumers or end-users of an online system or
service and is publicly available to other
consumers and end-users.
Examples:
•Comments posted on a blog
•Photos uploaded to Facebook
•Videos distributed via YouTube
•Pins saved on Pinterest
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Here’s the Macy’s UGC policy
Decide to what extent you want to claim
ownership over user-generated content.
Can allow user to retain full ownership
of content, can make user transfer
ownership completely to the site, or
anything in between.
Although claiming ownership of UGC
gives you more flexibility in how you
use that content, it also could increase
your risk of liability.
…you must inform users of your policy
46. 5. Tread carefully with cease
and desist letters
A bad letter gone viral can be worse than
your copyrights being violated.
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47. Exhibit A: The Streisand Effect
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Barbra Streisand sued the California Coastal
Records Project for including an aerial image
of her home on their site.
The internet found out and got angry at her
attempt to limit free speech.
The photo of her home ended up being
viewed far more than it otherwise would
have.
“The Streisand Effect” has come to describe
how efforts to suppress a piece of online
information can backfire and end up making
things worse for the would-be censor.
49. Exhibit B: Jack Daniels
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On the other hand, a good cease and desist letter can go viral and cause
positive publicity.
Jack Daniels issued a cease & desist letter to an author, claiming his book
cover was too similar to their bottle design.
The letter was polite:
• “We are certainly flattered by your affection for the brand.”
• “We wish you continued success with your writing.”
• Only asked for design to be changed at future reprinting.
• Offered to pay for an immediate reprinting.
50. Striking a Balance
What marketers are trying to accomplish with social media
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Must strike a balance between marketing your
brand and following the law.
Social media users often don’t realize that
legal rules govern their online conversation.
Marketers aren’t trying to break laws, and
lawyers aren’t trying to take the fun out of
social media.
Attorneys need to help their clients influence
the online conversation so that engagement in
social media helps the brands rather than
causing damage to their reputations and
exposing the owner to legal risk.
