Endorsement: any advertising message that consumers are likely to believe reflects the opinion, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. If the blogger receives the product from the manufacturer for free, then the blogger should disclose this fact. Basically if at anytime the blogger receives the product for free, or in any other manner in which it may influence his review of the product, then the relationship between the blogger and the marketer should be disclosed.
Reports indicate the fine could be up to around $10,000. However, the FTC says this is untrue. More likely, it is reported that each infraction will build up until the FTC decides to act. So far the FTC has only gone after companies and corporations. These have resulted in settlements. Legacy Learning Systems is the first company required to pay a monetary settlement. The FTC claims that reviews on Legacy learning videos were obtained from paid endorsers.
Emily Campbell, Esq.: Blogging and Copyright Law - Things to Think About
Blogging and CopyrightLaw: Things to Think About Emily E. Campbell, Esq. DUNLAP CODDING, P.C.
Sources of Copyright LawU.S. Constitution - Article I – Sec. 8 The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Copyright Act of 1976, as amended Effective January 1, 1978 17 U.S.C. § 101, et seq.
What is protected by Copyright? Copyright applies to “original works of authorship” that are “fixed in any tangible medium of expression” Literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work
What is protected by Copyright? Copyright never protects the “facts” -- only the way the author has organized, selected, or arranged The copyright owner therefore does not have the exclusive right to reproduce the “facts” in a work; only the way that he/she chose to select, organize or arrange those facts Tob y re sting by chri stho mso Mango HaX0ring by slava n
Who is the “Author?” Ordinarily, the author is who you think it is Joint authors own a copyright jointly If the work was created by employee acting within the scope of his/her employment, the employer is the author Oftentimes, the author is the owner, however, ownership can be transferred from the author to a third party. Chiang Mai - Maetaman by ckmck
What does all this mean? Owners can exclude others from: • reproducing the work • distributing the work to the public • creating a “derivative work” based upon the work • performing the work in public • displaying the work to the public • transmitting the work by means of digital audio transmission
Do Copyrights last forever? No. Works published prior to 1923 – Public Domain Prior to March 1, 1989 Absolute mess ---- depends on number of factors After March 1, 1989 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation
The Good News Copyrights will protect: Blog designs Artwork Text Any original work of authorship. Metallic ballpen tips / biro Ballpen Ballpoint pen in silver with handwritten random blue text on quad- ruled paper by photosteve 101
The Bad News The stuff other people create is protected by copyrights. Unauthorized use of another’s copyrighted material may place you at risk: Financialjeopardy Reputation Criminal Penalties Money by AMagill
Digital Millennium Copyright Act (DMCA)Complaints Creates a “safe harbor” immunity from copyright liability for service providers who “respond expeditiously” to notices claiming that they are hosting or linking to infringing material. You can counter-notify
Bad News … … Company XYZ is never willing to resolve copyright infringement and unauthorized use claims for the same amount as the base licensing rate … it would encourage unauthorized use because there would be no real disincentive to getting caught. Moreover, that approach fails to take into the significant costs incurred by Company XYZ in tracking down your unauthorized use that would not have been incurred had you come to us for a legitimate license … many image companies multipliers such as 5x or10x for unauthorized uses…
Protection from Infringement? Original Content Public Domain Creative Commons Licenses Fair Use Defense, not a right Baywatch by Soggydan
Public Domain No one owns it. Everything published before 1923. US federal works. Authors can choose.
Fair Use ExceptionPlease note “this language does not provide blanket immunity,” and “whether a use referred to in…Section 107 is fair use…depends upon the application of the determinative factors” Basic Brooks, Inc. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522, 1529 (S.D.N.Y. 1991)
When Does Fair Use Apply? In determining whether the use made of a work is a fair use, consider these four 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. (Section 107 of US Copyright Law of 1976)
Additional Copyright Resources U.S. Copyright Office www.copyright.gov Blogger’s Legal Guide www.eff.org/issues/bloggers/legal/liability/IP UT Crash Course in Copyright copyright.lib.utexas.edu/ Interactive Copyright Lecture www.cyberbee.com/cb_copyright.swf Creative Commons creativecommons.org/
THE FTC: A FEW THINGS YOU MIGHT WANT TO KNOWDUNLAP CODDING, P.C.
When to disclose? Disclose if there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement Youget product for free A manufacturer sends you a sample Advertiser pays you Don’t need to disclose if: You paid for the product yourself The free sample is one that anyone could have Airedale Presents from Oz obtained (e.g. grocery store samples) by Lulu Hoeller
How to Disclose “Company X sent me For twitter: (name of product) to #paid try…” ad #paid #ad For videos My Ferret by silicon640c Disclaimerat the beginning that says some products used were sent by the manufacturer
Consequences… Written Warnings Monetary Fines Money by AMagill
Additional FTC Resources FTC.gov FTC Facts for Business 16 C.F.R. Part 255 FTC Videos of Endorsement Revisions Caught Surfin Flickr by derekGavey