Social Media, Blogging & the Law - An Inbound Marketer's Guide

Avoiding the Legal Pitfalls of Using Blogs for Inbound Marketing Kenan Farrell, CEO KLF Legal @KLFLegal LinkedIn.com/in/kenanfarrell Presented By: In Partnership with: Columbia Financial International, Inc.

Agenda
About Kuno Creative
Chad H. Pollitt Director of Social Media & Search Marketing Kuno Creative @CPollittIU LinkedIn.com/in/seofortwayne Twitter: #KunoLaw

Agenda
About Kuno Creative
Introduction – Kenan Farrell

Agenda
About Kuno Creative
Avoiding the Legal Pitfalls of Using Blogs for Inbound Marketing

Agenda
About Kuno Creative
How Lawyers are Using Social Media

Agenda
About Kuno Creative
The New Legal Networking Guide

Agenda
About Kuno Creative
The New Legal Networking Guide
Questions & Answers

About Kuno Creative Kuno Creative helps small to medium sized businesses find and capture leads through Inbound Marketing. Twitter: #KunoLaw

About Kuno Creative
Inbound Marketing Services
Creating Great Content
SEO
Social Media
Monitoring
Engagement
Marketing
PPC, SEM
Email Marketing
Lead Nurturing
HubSpot Certified Partner
Twitter: #KunoLaw

Introduction
Kenan Farrell, Attorney
CEO, KLF Legal, Indianapolis, IN
Intellectual Property, Entertainment
www.KLFLegal.com
Twitter: #KunoLaw Kenan Farrell CEO KLF Legal @KLFLegal LinkedIn.com/in/kenanfarrell

Introduction
www.KLFLegal.com
Chairman of the Indianapolis Bar Association’s Sports and Entertainment Committee

Introduction
www.KLFLegal.com
Chairman of the Indianapolis Bar Association’s Sports and Entertainment Committee
Past Chair of the Solo and Small Firm Committee

Twitter: #KunoLaw (c) Kenan L. Farrell 2010

Today’s AGENDA (c) Kenan L. Farrell 2010
Intellectual Property (Copyright, Trademark)
Corporate Blogging
Criminal Law
Defamation (Truth as Defense, Public v. Private Figures)
Privacy (Publication of Private Information, “Newsworthy”)
Net Neutrality
Wikileaks
Business Entity Formation for Professional Bloggers
Twitter: #KunoLaw

Dear KLF Legal,
What obligation do I have to give attribution to an original source?
To what extent can I use the content of a news story?
Do I have any obligation to not delete comments from my wall/comment board?
(c) Kenan L. Farrell 2010 Twitter: #KunoLaw

Laws vary state-by-state. You publish to all states. You may be subject to 50 different laws. (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

Social Media Policy (c) Kenan L. Farrell 2010 http://socialmediagovernance.com/policies.php Twitter: #KunoLaw

Corporate Blogging
Disclosure of non-public information through the use of blogs can expose a company to liability for violating securities regulations on selective disclosure.
Information NOT allowed in blog postings:
buying and selling stock
product launches
regulatory proceedings or investigations
results of product trials
If a disclosure does occur, the company needs to immediately evaluate the extent of the disclosure and determine if some form of follow up is required.

Comment Policy
Post a comment policy to inform readers:
what you will allow on your blog
what you will not allow, and
what they are allowed to do.

Comments (c) Kenan L. Farrell 2010 You have a First Amendment right to publish your blog in the way that you want, which includes the right to choose who may participate in discussions on your blog. You’re able to delete comments that are offensive or off-topic. Respect the voice of others. Twitter: #KunoLaw

Copyright 101
Copyright are exclusive rights granted to the creator of an original work
Bundle of Rights
1) reproduction of the work
2) preparation of derivative works
3) distribution of copies of the work
4) public performances of the work
5) public display of the work.

Internet – no barriers to copying (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

The Internet Is Built on Copying (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

It’s Technically Infringement, but it may be a “Fair Use”
Fair Use factors:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The law favors “transformative” use. (c) Kenan L. Farrell 2010 “ transformative” - the original use, purpose, or intent of the material has been changed significantly into something substantially different in both appearance and objective Twitter: #KunoLaw

All images and text in the presentation are used for purposes such as:
criticism
comment
news reporting
teaching
scholarship
research
Fair Use Twitter: #KunoLaw (c) Kenan L. Farrell 2010

How to avoid copyright infringement
CREATE 100% ORIGINAL CONTENT
USE CONTENT LICENSED FOR REUSE*
GIVE CREDIT WHERE CREDIT IS DUE!

Copyright Troll (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

Last week Righthaven filed its 167th copyright infringement suit in federal court
Righthaven seeks $150,000 in damages and forfeiture of the defendants' website domain name
Cases generally settling for less than $5,000

DMCA Takedowns
Google Wins Viacom Copyright Lawsuit – 6/23/10
YouTube’s “mere knowledge” of infringing activity “is not enough.”
YouTube had no way of knowing whether a video was licensed by the owner, was a “fair use” of the material “or even whether its copyright owner or licensee objects to its posting.
DMCA Sec. 512 - limiting the liability of online services from copyright infringement of their users

DMCA Takedown Notice (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

(c) Kenan L. Farrell 2010 S. 3804: Combating Online Infringement and Counterfeits Act (COICA) Twitter: #KunoLaw

Trademark 101
A trademark is a 1) distinctive sign or indicator 2) used to identify products or services as originating from a unique source, and 3) to distinguish its products or services from those of other entities.
Reduces consumer confusion
Reduces unfair competition

Pepsi®, McDonalds®, Apple®
or
Trademark 101 (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

Trademark Checklist
Get your domain name(s), Facebook username, Twitter account, etc.
At bare minimum, do a Google search for similar marks
When budget permits, seek federal registration
Always use a proper trademark notice (™ for common law rights, ® if you’ve obtained registration)

Nominative Fair Use
You are permitted to use somebody else’s trademark if using the trademark is necessary to identify the products, services, or company you’re talking about, and you don’t use the mark to suggest the company endorses you.
"shopping for books at Walmart”
"playing a Playstation game”
"wearing Oakley sunglasses."

Criminal Law (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

tinyurl.com/reallydumbfacebookposts (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

DEFAMATION
Defamation is the issuance of a false statement about another person, which causes that person to suffer harm.
(c) Kenan L. Farrell 2010
Slander involves spoken defamatory statements.
Libel involves defamatory statements in a printed or fixed medium, such as a newspaper, book or blog.
Twitter: #KunoLaw

DEFAMATION (c) Kenan L. Farrell 2010 Twitter: #KunoLaw
Anyone who repeats someone else’s statements is just as responsible for the defamatory content as the original speaker if they knew, or had reason to know, of the defamation.
Section 230 of Communications Decency Act provides strong protection.

Private individual only has to prove you acted negligently, which is to say that a “reasonable person” would not have published the defamatory statement.
A public figure must show “actual malice” – that you published with either knowledge of falsity or in reckless disregard for the truth.
A “public figure” is someone who has actively sought, in a given matter of public interest, to influence the resolution of the matter.
DEFAMATION (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. Communications Decency Act Sec. 230 (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

User Comments
If the bubble touches me, you’re going to be arrested for assault (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

French Court Convicts Google of Defamation After Linking Convicted Rapist With Rape – Sept. 27, 2010 (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

PRIVACY
A public disclosure of private information concerning the plaintiff that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities;
to persons who have no legitimate interest in the information;
in a manner that is coercive and oppressive.
(c) Kenan L. Farrell 2010 Publication of private information (Indiana): Twitter: #KunoLaw

“ Newsworthy” (c) Kenan L. Farrell 2010 Private information is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. Public has a legitimate interest in almost all recent events, even if it involves private information about participants, as well as a legitimate interest in the private lives of prominent or notorious figures (such as actors, actresses, professional athletes, public officers, noted inventors, or war heroes). Twitter: #KunoLaw

“ Newsworthy”
Newsworthiness is not limited to reports of current events, but extends to articles for the purposes of education, amusement, or enlightenment.
However, a court may look at whether the private information is pertinent to an otherwise newsworthy story.

Wikileaks (c) Kenan L. Farrell 2010 Twitter: #KunoLaw

Right of Publicity
Individual's right to control and profit from the commercial use of his/her name, likeness and persona
In many states, defendants often must pay attorney fees to the plaintiff if a claim is successful.

Net Neutrality (c) Kenan L. Farrell 2010 Really really really F’d. The First Amendment issue of our time. Neutrality - No restrictions by ISPs and governments on content, sites, platforms, on the kinds of equipment that may be attached, and no restrictions on the modes of communication allowed Twitter: #KunoLaw

Professional Bloggers (c) Kenan L. Farrell 2010
How should you structure your business?
Two key features to consider in structuring your business are:
liability protection
desired tax treatment.
There are several ways to form a business including: sole proprietorship, partnerships, corporations, limited liability companies, and limited liability partnerships.
Twitter: #KunoLaw

Contact:
/KLFLegal
(c) Kenan L. Farrell 2010 Facebook.com Twitter.com LinkedIn.com/in/kenanfarrell Twitter: #KunoLaw } www.KLFLegal.com Phone: 317.808.0000 Blog: klflegal.wordpress.com Blog: indianaintellectualproperty.wordpress.com Email: [email_address]

Attorneys & Law Firms
Are using social media for…
Personal & Professional Networking
Blogging (Personal & Firm)
Litigation Research & Voir Dire
Communication with Clients
Marketing
Brand awareness
Lead generation
#KunoLaw

Facts & Fiction
Social Media & the Law
New Media Marketing
Lead Generation
Personal / Firm Brand
Rules of Engagement
Real-World Examples
6-month Plan
From: Columbia Financial International and Kuno Creative Special Offer for Attorneys & Firms The New Legal Networking Guide E-book: How to Use Social Media to Get New Clients for Your Law Firm Twitter: #KunoLaw

Special offer : $50 off (reg. $249)
http://NewLegalNetworking.com
Discount Code: “KunoLaw”
Special Offer for Attorneys & Firms The New Legal Networking Guide E-book: How to Use Social Media to Get New Clients for Your Law Firm From: Columbia Financial International and Kuno Creative Twitter: #KunoLaw

Questions & Answers
Slides Posted at: SlideShare.net/KunoCreative
Twitter: #KunoLaw

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