The document provides information about an upcoming event hosted by The Net Impact on May 22, 2012. Jeff Schultz from Armstrong Teasdale LLP will give a presentation called "Who Owns You? Content in an Interactive World" about intellectual property rights related to social media postings. The event is part of The Net Impact's TXCHANGE series which focuses on new technology and web marketing strategies. Details are provided about The Net Impact organization, the speaker, and the topics that will be covered in the presentation.

1. Welcome to The Net
Impact’s May TXCHANGE
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Jeff’s presentation will begin at 6:00pm
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5. About Jeff Schultz
 Partner and Chair, Social Media Practice Group
 Writer, speaker, and advisor on non-compete agreements,
trade secrets, computer tampering and social media
 Accomplishments
• Recognized by the Missouri Bar for inclusion in the "2011 Pro
Bono Wall of Fame“
• Named a "Rising Star" by Missouri/Kansas Super Lawyers®
(2011)
• Named Chair of The Missouri Bar's Technology & Computer
Law Committee.
• First place winner in the Bar Association of Metropolitan St.
Louis First Annual Trial Advocacy Competition.

6. Who Owns You?
Content in an Interactive
World
May 22, 2012
Jeff Schultz
Partner, Armstrong Teasdale LLP
Chair, Social Media Practice Group

7. Armstrong Teasdale Social Media
Practice Group

8. Intellectual Property Rights Potentially
Implicated in Social Media Postings
 Copyrights
 Trademarks – Lanham Act Section 45 (15 U.S.C.
1127); MO Rev. Statutes Ch. 417
 Trade Secrets – Uniform Trade Secrets Act; MO Rev.
Statutes Ch. 417
 Contractual Rights

9. Copyrights
 Copyright protection is available for
original works of authorship
 Everything you create as an original
work has an inherent copyright
attached
 Examples include: blog posts,
tweets, web sites, advertising
material, music
 Joint Works (2 or more authors)
 Works for hire (created by employee)
 U.S. Copyright Office Circular 66
expressly considers “Online” works
 Ways to Secure Rights
• Proper use of Copyright Notices (©
2011 ABC Corporation)
• Copyright Registration

10. Copyrights –
Notice/Registration/Infringement
 Notice of Copyright:
• “Copyright”, “Copr.”, or “©” + name and year of first
publication
 Registration:
• allows you to bring an infringement action and
provides the opportunity to recover Statutory
Damages
 Duration:
• Life of Author, plus 70 years
• Works for Hire – 95 years from publication, or 120
years from year of creation, whichever first
 Infringement occurs when an owner’s rights are
violated
• Copying the original work
• Creating new work derived from the original
• Distributing original work without permission
• Performing/displaying without permission of owner

11. Copyrights – Defenses
 Fair Use – A legal license
granted by the courts to
advance the public interest.
Generally includes use of
protected work for news
reporting, educational
purposes, commentary
and/or parody

12. Copyright – Defenses (continued)
 Digital Millennium Copyright ACT
(DMCA) Safe Harbor – 17 U.S.C.
Section 512
• If material is made available online by a
person other than the service provider
and the service provider responds to
remove or disable access to the
infringing material upon notification of
infringement, the service provider is not
liable for monetary relief.
• Applies when:
• Carrier does not know when it is
carrying infringing material
• Carrier does not receive a financial
benefit directly as a result of the
infringing material
• Carrier conforms to notice and take
down procedures

13. Trademarks
 Trademark includes any word, name,
symbol,
or device which a person uses in
commerce to
identify and distinguish his or her goods,
from those manufactured or sold by
others
 Ways to Secure Rights
• By Proper Use of the Trademark in
Commerce
• Federal Trademark Registration (® vs ™
)
 Strength of the Mark
• Must be “distinctive” in identifying the
owner as the source of the goods or
services
 Types of Marks

14. Trademark Infringement:
Likelihood of Confusion
 For registered marks, a plaintiff must show that
defendant used the mark:
• Without consent; In commerce;
That the mark used was a reproduction, copy
or colorable limitation of plaintiffs’ registered
mark; and that such a use is likely to cause confusion
 Courts apply a multifactor test which considers:
• Similarity of marks vs.
• Similarity of products
• Area and manner of concurrent use
• Degree of care likely to be exercised by consumers
• Strength of Plaintiff’s mark
• Whether actual confusion exists; and
• Intent of defendant in selecting its mark

15. Trade Secrets—Uniform Trade
Secrets Act
 A trade secret is information that:
• Derives independent economic value from not being
generally known to, and not being readily
ascertainable by proper means by other persons who
can obtain economic value from its disclosure or use;
and
• Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.

16. Contractual Rights
 Non-Disclosure and
Confidentiality
Agreements
 Invention Assignment
Agreements
 Terms and Conditions

17. So How do These Legal Terms
Apply to Social Media?

18. Facebook Terms
(last revised April 26, 2011)
2. Sharing Your Content and Information
You own all of the content and information you post on Facebook, and you can control how it is
shared through your privacy and application settings. In addition:
 For content that is covered by intellectual property rights, like photos and videos (IP content), you
specifically give us the following permission, subject to your privacy and application settings: you
grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any
IP content that you post on or in connection with Facebook (IP License). This IP License ends
when you delete your IP content or your account unless your content has been shared with
others, and they have not deleted it.
 When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a
computer. However, you understand that removed content may persist in backup copies for a
reasonable period of time (but will not be available to others).
 When you use an application, your content and information is shared with the application. We
require applications to respect your privacy, and your agreement with that application will control
how the application can use, store, and transfer that content and information. (To learn more
about Platform, read our Privacy Policy and Platform Page.)
 When you publish content or information using the Public setting, it means that you are allowing
everyone, including people off of Facebook, to access and use that information, and to associate
it with you (i.e., your name and profile picture).
 We always appreciate your feedback or other suggestions about Facebook, but you understand
that we may use them without any obligation to compensate you for them (just as you have no
obligation to offer them).

19. Facebook Terms (continued)
(last revised April 26, 2011)
5. Protecting Other People's Rights
We respect other people's rights, and expect you to do the same.
 You will not post content or take any action on Facebook that infringes or violates someone else's
rights or otherwise violates the law.
 We can remove any content or information you post on Facebook if we believe that it violates this
Statement.
 We will provide you with tools to help you protect your intellectual property rights. To learn more,
visit our How to Report Claims of Intellectual Property Infringement page.
 If we remove your content for infringing someone else's copyright, and you believe we removed it
by mistake, we will provide you with an opportunity to appeal.
 If you repeatedly infringe other people's intellectual property rights, we will disable your account
when appropriate.
 You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos,
FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.
 If you collect information from users, you will: obtain their consent, make it clear you (and not
Facebook) are the one collecting their information, and post a privacy policy explaining what
information you collect and how you will use it.
 You will not post anyone's identification documents or sensitive financial information on
Facebook.
 You will not tag users or send email invitations to non-users without their consent.

20. Facebook Terms (continued)
(last revised April 26, 2011)
8. Special Provisions Applicable to Share Links
If you include our Share Link button on your website, the
following additional terms apply to you:
 We give you permission to use Facebook's Share Link button
so that users can post links or content from your website on
Facebook.
 You give us permission to use and allow others to use such
links and content on Facebook.
 You will not place a Share Link button on any page containing
content that would violate this Statement if posted on
Facebook.

21. Twitter Terms of Service
(Effective June 1, 2011)
 Tip: What you say on Twitter may be viewed all
around the world instantly. You are what you Tweet!

22. Twitter Terms of Service (continued)
(Effective June 1, 2011)
Your Rights
 You retain your rights to any Content you submit, post or display on or through the Services. By
submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-
exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt,
modify, publish, transmit, display and distribute such Content in any and all media or distribution methods
(now known or later developed).
Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others
do the same.
 You agree that this license includes the right for Twitter to make such Content available to other
companies, organizations or individuals who partner with Twitter for the syndication, broadcast,
distribution or publication of such Content on other media and services, subject to our terms and
conditions for such Content use.
Tip: Twitter has an evolving set of rules for how ecosystem partners can interact with your content. These
rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own
your Content (and your photos are part of that Content)
 Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter,
may be made with no compensation paid to you with respect to the Content that you submit, post,
transmit or otherwise make available through the Services.
 We may modify or adapt your Content in order to transmit, display or distribute it over computer networks
and in various media and/or make changes to your Content as are necessary to conform and adapt that
Content to any requirements or limitations of any networks, devices, services or media.
 You are responsible for your use of the Services, for any Content you provide, and for any consequences
thereof, including the use of your Content by other users and our third party partners. You understand that
your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for
such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your
Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights,
power and authority necessary to grant the rights granted herein to any Content that you submit.
 Twitter gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the
software that is provided to you by Twitter as part of the Services. This license is for the sole purpose of
enabling you to use and enjoy the benefit of the Services as provided by Twitter, in the manner permitted
by these Terms.

23. Blogger Terms
6. Intellectual Property Rights. Google's Intellectual Property Rights. You acknowledge that Google
owns all right, title and interest in and to the Service, including all intellectual property rights (the
"Google Rights"). Google Rights are protected by U.S. and international intellectual property laws.
Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works
from the Service. You also agree that you will not use any robot, spider, other automated device,
or manual process to monitor or copy any content from the Service. As described immediately
below, Google Rights do not include third-party content used as part of the Service, including the
content of communications appearing on the Service.
Your Intellectual Property Rights. Google claims no ownership or control over any Content
submitted, posted or displayed by you on or through Google services. You or a third party
licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post
or display on or through Google services and you are responsible for protecting those rights, as
appropriate. By submitting, posting or displaying Content on or through Google services
which are intended to be available to the members of the public, you grant Google a
worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such
Content on Google services for the purpose of displaying and distributing Google services.
Google furthermore reserves the right to refuse to accept, post, display or transmit any Content in
its sole discretion.
You represent and warrant that you have all the rights, power and authority necessary to grant the
rights granted herein to any Content submitted.
You may choose to submit, post, and display any materials on or through the Blogger service or
Blogspot.com under a public license (e.g. a Creative Commons license), whether by manually
marking your materials as such or using Blogger service tools to do so. For avoidance of doubt,
Google is not a party to any such public license between you and any third party. Also, for
avoidance of doubt, Google may choose to exercise the rights granted under (a) the public license
or licenses, if any, you apply to your materials or (b) this Agreement.

24. WordPress Terms
 By submitting Content to Automatic for inclusion on your
Website, you grant Automatic a world-wide, royalty-
free, and non-exclusive license to reproduce, modify,
adapt and publish the Content solely for the purpose
of displaying, distributing and promoting your blog. If
you delete Content, Automattic will use reasonable
efforts to remove it from the Website, but you
acknowledge that caching or references to the Content
may not be made immediately unavailable.

25. Tumblr Terms
3. Subscriber Content
 Subscriber shall own all Subscriber Content that Subscriber contributes to the Site, but
hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free,
transferable right and license (with the right to sublicense), to use, copy, cache, publish,
display, distribute, modify, create derivative works and store such Subscriber Content and
to allow others to do so (“Content License”) in order to provide the Services. On
termination of Subscriber’s membership to the Site and use of the Services, Tumblr shall
make all reasonable efforts to promptly remove from the Site and cease use of the
Subscriber Content; however, Subscriber recognizes and agrees that caching of or
references to the Subscriber Content may not be immediately removed. Subscriber
warrants, represents and agrees Subscriber has the right to grant Tumblr and the Site the
rights set forth above. Subscriber represents, warrants and agrees that it will not contribute
any Subscriber Content that (a) infringes, violates or otherwise interferes with any
copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber
owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual
property right of another or the privacy or publicity rights of another, (d) is libelous,
defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any
law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other
computer programming routine or engine that is intended to damage, detrimentally interfere
with, surreptitiously intercept or expropriate any system, data or information, or (f) remains
posted after Subscriber has been notified that such Subscriber Content violates any of
sections (a) to (e) of this sentence. Tumblr reserves the right to remove any Subscriber
Content from the Site, suspend or terminate Subscriber’s right to use the Services at any
time, or pursue any other remedy or relief available to Tumblr and/or the Site under equity
or law, for any reason (including, but not limited to, upon receipt of claims or allegations
from third parties or authorities relating to such Subscriber Content or if Tumblr is
concerned that Subscriber may have breached the immediately preceding sentence), or for
no reason at all.

26. 1. Sharing Your Content
 Your content. Pinterest allows you to pin and post content on the Service,
including photos, comments, and other materials. Anything that you pin,
post, display, or otherwise make available on our Service, including all
Intellectual Property Rights (defined below) in such content, is referred to as
“User Content.” You retain all of your rights in all of the User Content you
post to our Service.
 How Pinterest and other users can use your content. Subject to any
applicable account settings you select, you grant us a non-exclusive,
royalty-free, transferable, sublicensable, worldwide license to use,
display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and
distribute your User Content on Pinterest for the purposes of operating
and providing the Service(s) to you and to our other Users. Nothing in
these Terms shall restrict Pinterest’s rights under separate licenses to User
Content. Please remember that the Pinterest Service is a public platform,
and that other Users may search for, see, use, and/or re-pin any User
Content that you make publicly available through the Service.

27. Your responsibility for your content:
 To Pinterest and our community. Pinterest provides a creative and positive place
for you to discover and share things you love. To keep it that way, we ask that you
review and agree to abide by our Pin Etiquette. We must also insist that you only use
our Service in a manner that is consistent with the Pinterest Acceptable Use Policy.
We reserve the right, but are not obligated, to remove User Content from the Service
for any reason, including User Content that we believe violates these Terms or the
Pinterest Acceptable Use Policy. Please — be a good citizen on Pinterest, and always
respect our Service and its Users.
 To third parties. Pinterest values and respects the rights of third party creators and
content owners, and expects you to do the same. You therefore agree that any User
Content that you post to the Service does not and will not violate any law or
infringe the rights of any third party, including without limitation any Intellectual
Property Rights (defined below), publicity rights or rights of privacy. We reserve
the right, but are not obligated, to remove User Content from the Service for any
reason, including User Content that we believe violates these Terms or the Pinterest
Acceptable Use Policy. It is important that you understand that you are in the best
position to know if the materials you post are legally allowed. We therefore ask that
you please be careful when deciding whether to make User Content available on our
Service, including whether you can pin or re-pin User Content on your boards. To
learn more about copyright and fair use, please click here for some links to useful third
party resources.

28. 8. Indemnity
 You agree to indemnify and hold harmless Pinterest
and its officers, directors, employees and agents,
from and against any claims, suits, proceedings,
disputes, demands, liabilities, damages, losses,
costs and expenses, including, without limitation,
reasonable legal and accounting fees (including
costs of defense of claims, suits or proceedings
brought by third parties), arising out of or in any way
related to (i) your access to or use of the Services or
Pinterest Content, (ii) your User Content, or (iii) your
breach of any of these Terms.

29. Restrictive Covenants (e.g. Non-Compete and
Non-Solicitation Agreements) and Trade Secret
Issues
 Issue 1: violation of restrictive covenants/disclosure of
trade secrets through the use of social media
 Issue 2: destruction of trade secret status/hurdles to
enforcing restrictive covenants as a result of social media
activities
 Result: employees are being asked to give up rights in
restrictive covenants and employment agreements

30. An Employee’s
Duty of Loyalty
 In general, an employee
must not act contrary to an
employer’s interest
 However, an employee may
agree with others to compete upon termination of their
employment and may plan and prepare for their
competing enterprise while still employed
 But: An employee may not, while still employed, go
beyond mere planning and preparation and act in direct
competition with the employer

31. Business
Opportunities
of the Employer
 When considering whether
an employee seizes the
business opportunity the
following factors may be considered:
• The manner in which the opportunity was communicated
• The “good faith” of the employee
• The use of corporate assets to acquire the opportunity
• The financial ability and interest of the company to
undertake the opportunity
• The degree of disclosure made to the corporation

32. Example:
 You work in advertising/PR and write a social media
related book
• Do you have a contract with
your employer?
• Are you using work
resources?
• Are you writing for the
benefit of your employer?
• Are you writing with the
consent/encouragement of
your employer?
• Do you utilize Social Media
because of your job?
• Have you gained your
expertise in the area because
of your job?

33. Example:
 You work in advertising/PR for a major brewing
company and write a beer review blog in your spare
time
• Do you have a contract with
your employer?
• Are you using work resources?
• Are you writing for the benefit
of your employer?
• Do your followers know you
work for the Brewery?
• Are your posts promotional
of/tied to your work at the
Brewery?
• Have you gained your expertise
in the area because of your
job?

34. Example:
 You work in advertising/PR for a major brewing
company and write a blog about cats…
• Unless it’s this cat…

35. Social Media Policies Can Provide
Much Needed Guidance
 Things to Consider…
 Does your industry or profession
have specialized rules or regulations
concerning communication?
 Will employees be allowed to use
social networks during working
hours?
 Does the Company intend to claim
ownership of any content?
 How can employees use the corporate
brand on social networks?
 Will employees be allowed/expected
to comment on company related
topics?
 What are the penalties for employees
who violate your policy?
 Reserve the right to modify the policy

36. In Addition to a Policy, Provide
Training to know
 Employees need
not only what is expected
of them and what rights
you may claim, but WHY
 You should make clear
what expectations and
opportunities your
company may be interested
in
 Regular training updates (at
a minimum yearly) provides
opportunity to reinforce
your position and keep
employees up to date with
new developments

37. When in Doubt, Don’t be Afraid to
Ask
 No one can be expected to know everything about
social media
 New networks / sites develop everyday
 Consumer use adapts at a breakneck pace
 Terms and conditions change frequently
 Case law is developing as we speak

38. Contact Information
Jeff Schultz
Partner, Armstrong Teasdale LLP
314.259.4732
jschultz@armstrongteasdale.com
www.armstrongteasdale.com
http://twitter.com/JeffSchultzEsq
http://twitter.com/AT_Law
http://twitter.com/AT_Live
http://twitter.com/AT_Innovate