Social Media and Intellectual Property


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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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Social Media and Intellectual Property

  1. 1. Social Media and Intellectual Property Colin Hutt President of Primum Marketing Communications November 19, 2013
  2. 2. • • 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. 3. Is social media worth the risk? It’s a bigger risk to ignore it. • • • Risk vs. reward Joining or launching social sites is risky. Staying out of social media is also risky (legally and from marketing perspective).
  4. 4. 5 Areas to Watch • Defamation • Patents • Copyright • Trademark • Trade secret
  5. 5. Defamation • • • • • • 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!
  6. 6. • • • • • 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)
  7. 7. • • • 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. 8. Copyright • • • • • 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. 9. What counts as copyright infringement? • • • 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:  • The reproduction is without a commercial purpose • The library and collections are available to the public • 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. 10. Trademarks Impersonation vs. Parody • • • • 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: • The avatar can’t be a trademarked logo. • User name must distinguish account as parody (include “not,” “fake” or “fan”). • Bio must include a statement about being a parody account.
  11. 11. Trade Secrets • Phonedog v. Kravitz case • • • 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.
  12. 12. Protect Your Intellectual Property
  13. 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.
  14. 14. Reactively: Issue a takedown notice under Digital Millennium Copyright Act (DMCA) 01
  15. 15. The Digital Millennium Copyright Act protects service providers on the Internet from liability for the activities of its users. • • • • 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. 16. The DMCA provides safe harbors for: • • • • 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)
  17. 17. How to issue a takedown notice to YouTube
  18. 18. Avoid Infringing on Others’ Copyright
  19. 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: • How much of the original work was used • Whether the new use is commercial in nature • Whether the market for the original work was harmed • Whether the new work is a parody
  20. 20. What counts as fair use? • • • 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. 21. Threshold of Originality • • • 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. 01
  22. 22. A Look at the Terms of Service
  23. 23. Things to Look For • Who has the rights to content after you post it? • Do you have the rights to post it in the first place? • What happens to content if you delete it and/or your account? • Who is responsible for copyright infringement, defamatory comments, etc. that you may post? • What can the social media site do with your information and the content you post?
  24. 24. Social Media and Privacy
  25. 25. What’s Public and What’s Private? • • • • 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.
  26. 26. How Private Info can Become Public • Shares by approved friends/fans • Third-party apps are given access • Social site has access even after you delete content or account • Site changes privacy policy
  27. 27. Anything you put online can end up on social media. • • • 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.
  28. 28. The Internet Never Forgets! • • • 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.
  29. 29. This is what looked like in 1998.
  30. 30. 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.
  31. 31. Privacy Policies
  32. 32. Privacy Policies Can Change A Facebook Case Study • • • 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.
  33. 33. 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.
  34. 34. What social sites do with your info • Behavioral advertising • Leak your data to third-party tracking sites • Sell your contact info to advertisers or spammers • Tailor the content you see
  35. 35. Best Practices
  36. 36. 1. Engage with Social Media Claim your names early. • • • • 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.
  37. 37. 2. Monitor your Brand • • 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. 01
  38. 38. 3. Only Post Original Content • • • • 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.
  39. 39. (and protect it proactively with watermarks, copyright symbols, etc.)
  40. 40. 4. Make a User-Generated Content Policy What’s user-generated content? 01
  41. 41. 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
  42. 42. Remember the DMCA? To qualify for DMCA Safe Harbor status… 01
  43. 43. • • • • 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
  44. 44. 5. Tread carefully with cease and desist letters A bad letter gone viral can be worse than your copyrights being violated. 01
  45. 45. Exhibit A: The Streisand Effect • • • • 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.
  46. 46. Exhibit B: Jack Daniels
  47. 47. Exhibit B: Jack Daniels • • • 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.
  48. 48. Striking a Balance What marketers are trying to accomplish with social media • • • • 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.