This document summarizes key intellectual property issues related to social media and mobile apps. It discusses copyright, trademark, and right of publicity laws and how they apply online. Key points include getting permission before using others' content, that attribution alone does not permit copyrighted use, and risks of user-generated content. Defenses, remedies, and strategies like licensing, monitoring sites, and complying with the DMCA safe harbor are also covered. The document aims to help businesses and individuals avoid legal issues when using IP in social media.

1. Use and Protection of IP in
Social Media and Apps
Indiana University McKinney
School of Law
Joel E. Tragesser
September 29, 2015

2. Social media is a great way to advertise, sell product, and enhance the image
of your brand.
When posting to social media, ask:
1. Where did I get this image, phrase, idea? Does my company own
it?
2. If hyperlinking, to whom am I hyperlinking? Why?
3. Will the post reflect positively on my company?
Social Media and Intellectual Property

3. Handling Real Time Advertising

4. Dealing with Social Media Errors

5. • Use of someone’s name, identity, likeness or persona
• Through which Defendant received a commercial advantage
• Use was without consent
• Injury to Plaintiff
Elements of a Right of Publicity Claim

6. • Incidental Use
• First Amendment
What are defenses to right of publicity?

7. Celebrity Images

8. • Applies to nearly all original work
• Applies to all forms of media
• Protection automatic
• Notice
–©2015 Quarles & Brady LLP. All rights
reserved.
–Watermarks
Copyright Basics

9. • Ideas
• Written laws, statues, regulations
• Facts
• Ingredients
• Titles or newspaper headlines
• Names or pseudonyms of individuals
• Slogans and short phrases
What is not Covered

10. • If it is posted on the internet, it is in the public domain
• If I add attribution, it is not copyright infringement
• If it isn't commercial use, it isn't a copyright violation
• If it has our trademark, we can use it
• If I paid for it, I can alter it
Common Copyright Myths

11. • If it is posted on the internet, it is in the public domain
– Truth: Assume it is copyrighted if you did not create it
– Applies to:
• Photographs
• Cartoon images
• Blog posts
• News articles
• News video
• Graphics depicting facts
Myths Corrected

12. • If I add attribution, it is not copyright infringement
– Truth: attribution prevents plagiarism not copyright infringement
– Giving credit is not a legal defense to copyright infringement
– Copyright infringement is the unauthorized use of someone else’s
copyrighted material
– After you get permission, attribution may be a requirement of the
permission
– Still a good idea to provide attribution
Myths Corrected

13. • If it isn't commercial use, it isn't a copyright violation
– Truth: commercial use is a broadly interpreted term
– Intended for class room use in an educational institution
– Intended for dissemination to registered students
Myths Corrected

14. • If it has our trademark, we can use it
– Truth: use of a trademark does not impact copyright laws
– Common situations:
• Company pays to sponsor an event and trademark is used
• Positive press coverage related to company
– Beastie Boys sue Monster Beverage Corp.:
• Music used in YouTube video recapping snowboarding event
• Beastie Boys awarded $1.7 million
Myths Corrected

15. • If I paid for it, I can alter it
– Truth: law grants copyright owners the exclusive right to control
modifications of their works.
– If you add a new layer, you have created a derivative work.
– Robin Thicke and Pharrell Williams
Myths Corrected

16. Copyright Trolls

17. • Actual damages and infringer's profits
• Statutory damages
• Injunctive relief
• Enhance damages for willfulness
• Attorneys fees
• Personal liability for officers and directors
Remedies Available to Trolls

18. • Beastie Boys awarded $1.7 million
• Blurred Lines Lawsuit approximately $7.4 million
• Statutory damages range from $750 to $30,000
• Possible $150,000 for enhance damages
How much money is at stake?

19. • “Hold” music played to the general public
• Waiting room music, chemo music, etc.
• Presentations presented to large group or posted
on the internet or intranet
• Video footage looped in break rooms
• Background music on commercials
• Operating social media that allows user
generated content
High Risk Activities

20. • Stock image distributor
– Getty Images
• Images, video, music
– Thinkstock.com
– Bigstockphoto.com
– Canstockphoto.com
Solutions

21. • Purchase re-prints
• Enter into license agreement
• Get permission
– Journals and newspapers want to grant permission
– New York Time
– The FarSide Cartoons
• In advance know audience size and media format
Solutions

22. • Original content
– Rephrase or summarize factual information
– Use of software programs to create content
Solutions

23. Mobile Apps

24. Solutions

25. • Exception to general rule
• Work prepared by an employee within the scope
of his or her employment is owned by the
employer
• Work specifically ordered or commissioned if the
parties expressly agree in writing that the work
will be work made for hire
Defining ownership: Work Made for Hire

26. • “Employee” means employee under
general common law of agency
• An “independent contractor” is someone
who is not an employee under the general
common law of agency
Who is My Employee?

27. • A software program created by a staff
programmer in the scope of his duties at a
software company is work made for hire
• Software to run a website created by a
third-party contractor is not work made for
hire unless the parties specify as such in
the contract
Examples

28. • Indemnification agreements
– Marketing agencies – who clears copyrights
• Sponsorship agreements
• License Agreements
• Contract for the rights you want in advance
Solutions – Other Contracts

29. • Same rules apply to social media sites
– Facebook, Twitter, Pinterest, YouTube
• Website owners can be liable for user
posted content
– Comment section on web pages
– Photos uploaded by users
Copyrights and Social Media

30. • Digital Millennium Copyright Act (DMCA)
• Safe Harbor if statutes provisions are
followed
– Designate an agent with the Copyright Office to
receive infringement notifications and display
contact info
– Remove allegedly infringing material
– Inform users of policy
Safe Harbor

31. • Comply with DMCA provisions
• Encourage User-Authored Content
• Monitor for and take down infringing
content
Tips to Avoid Infringement

32. • Digital Millennium Copyright Act (DMCA)
• Credible sites have take down procedures
What if my content is infringed?

33. • Trade dress is the overall appearance of a
product or package
– Includes franchise restaurants
– Dunkin’ Donuts
• Trademarks are source identifiers
– Trademarks include slogans
– Trademarks include logos
Trade Dress and Trademarks

34. Federal Trademark Registration

35. • Use of images containing trademarks
• Humor for profit
• Confusion over sponsorship
• Use of slogans in a different context
• Trade dress for humor
Potential Trademark Issues

36. Questions?
Joel E. Tragesser
Quarles & Brady LLP
135 N Pennsylvania Street
BMO Building Suite 2400
Indianapolis, IN 46204
www.quarles.com
P: (317) 399-2811
M: (317) 797-8576
F: (317) 957-5011
Joel.Tragesser@quarles.com
©2015 Quarles & Brady LLP. This document provides information of a general nature. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and
information or future developments may affect the subjects addressed in this document. You should consult with a
lawyer about your particular circumstances before acting on any of this information because it may not be applicable to
you or your situation.