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Social media (american marketing association november 15, 2011)(wo images)
- 1. Social media American Marketing Association November 15, 2011 John H. Rees Callister Nebeker & McCullough
- 2. Traditional marketing. . . What’s changed
- 3. Low barrier to entry
- 5. Who took the photos . . . How tough is it
- 6. And when the wind blows . . . . Courtesy of http://photoeverywhere.co.uk
- 7. Anonymity
- 8. Manipulation and false identity
- 9. Informality . . . 140 characters
- 10. 55.6% of all statistics are fabricated. . . Anybody may join the game
- 11. Banks on Facebook . . .What happened
- 12. AmEx onTwitter
- 13. What’s around the next corner . . .
- 14. Copy with care Overlooking ownership Understand user generated content (UGC) Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 15. True or false: Imitation is the highest form of flattery
- 19. ©
- 20. Injunction Damages and lost profits Crime Statutory damages up to $150,000 Attorneys fees Copyright infringement remedies . . . or what if I get caught
- 21. What is a copyright? Protects original works of authorship fixed in a tangible medium of expression Owner has exclusive rights: • Reproduction • Create derivative works • Distribution • Public display • Public performance Protects expression, not the ideas
- 22. • Notice not necessary for infringement claim • Giving copyright notice refutes claim of innocent infringement • May affect damage awards ©Year of first publication, name of owner Copyright notices
- 23. Copyright infringement Standard for infringement: • Valid copyright and copying of elements capable of protection Fair use—parody, other uses What about employees who copy with or without employer’s knowledge
- 24. I won’t get caught . . . But statutory damages
- 25. Copy with care Overlooking ownership Understand user generated content (UGC) Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 26. There’s IP to protect, but that’s not all Patents: Inventor(s) Trademarks: User of the marks/goodwill Copyright: Author/work made for hire Trade secrets: Creator/preservation
- 27. What is a campaign . . . And who owns it
- 28. Registration and technical contact Review your contract Confirm with the registrar www.whois.com www.networksolutions.com Cybersquatting Protect domain name
- 29. Which element has the greatest value
- 30. Channels
- 31. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 32. Copyright infringement Vicarious liability Contributory liability
- 33. DMCA--Safe harbor for online service providers • Not available to content providers, only online service provider • Online service provider needs to adopt a policy addressing issues under DMCA • Follow take down provisions • Cannot have actual knowledge of infringement without acting • Service provider may not directly benefit financially, if the service provider has the right to control content
- 34. DMCA--Safe harbor for online service providers • Appoint designated agent • Respond appropriately to take down notice that comply with DMCA • Respond appropriately to counter take down notices from subscriber to service
- 37. Defamation • Publication of a false statement • About another • Causes harm to the reputation of that person • Intent is not an element of the cause of action • Social networking makes it easy to engage in defamation
- 38. Communications Decency Act safe harbor • Service provider is a provider or user of an interactive computer service Defamation safe harbor • The asserted claim treats the provider as a publisher or speaker of information • The challenged communication is information provided by another information content provider—distinguish role of content provider
- 39. Harassment Invasion of privacy Breach of confidentiality
- 40. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 41. ®
- 42. • Damages • Court may award three times damages • Lost profits • Injunction • Attorney’s fees Trademark infringement remedies
- 43. What is a trademark? Word, name, symbol, device which identifies the source of goods and services • Slogans • Logos • Trade dress • Sounds • Colors • Smells
- 46. Pink
- 47. Sounds
- 48. Trademark infringement Unfair competition Unauthorized affiliation, sponsorship, or association Consumers are likely to be confused as to the source of the goods and services from use of a trademark Does not need to be intentional
- 49. Guess who?
- 50. • Sight, sound, and meaning— overall commercial impression • Nature of the goods and services • Channels of trade Trademark infringement factors • Sophistication of consumers • Fame of the marks • Any actual confusion • Number and nature of similar marks
- 51. Trademark rights accrue at common law by use in commerce—not by registration First to use has rights to a trademark Common law rights include area of use, plus “zone of natural expansion”
- 52. Trademark fair use May use as much of the mark as is reasonably necessary to describe the goods or services Does not include use of a logo Accurately describe the relationship between the parties
- 53. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 55. Endorsing products or services is anything but risk- free. In October, 2009, the FederalTrade Commission (FTC) adopted revised Guides Concerning the Use of Endorsement and Testimonials in Advertising (Guides) which became effective December 1, 2009. Under Section 5 of the FederalTrade Commission Act (15 USC Section 45) (FTC Act), the FTC has broad authority to prevent persons from using unfair methods of competition, or unfair or deceptive practices in commerce. www.considerthelaw.com FTC Guides
- 56. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 57. Use by employees
- 58. Policy for employee use of social media How much use of company resources and on company time is acceptable Does the company encourage the use of social media
- 59. Policy for employee use of social media • Identify what constitutes social media • Essentially any online communication • Should address use of social media using company owned hardware and personal devices and hardware, such as smart phones • What should be encouraged • What should be prohibited or discouraged
- 60. Notices to employees • No expectation of privacy for any company owned or operated sites or media • Failure to comply with the company social media policy could result in discipline and/or termination • Clearly define expectations • Training for the policy
- 61. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 63. Social media policies for background checks Issue: May an employer use information discovered through social media that is unrelated to the job and job performance TitleVII, Civil Rights Act May not discriminate based on protected classes
- 64. Social media policies for background checks May use social media for background checks only if legitimate business interest of the employer Separate out information—two different functions Need to provide to managers and decision makers written guidelines
- 65. Examples of appropriate uses for background checks • Potential employee misrepresents his/her identity to friend an employee of the company to gain access to restricted information • Information about drinking and use of drugs • Denigrating former employer, employees, or clients • Making discriminatory comments • Lying about qualifications • Sharing confidential information from a former employer
- 66. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 67. Concerted activity by employees
- 68. At will employees not really at will
- 69. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 70. No false, misleading, or deceptive practices or statements Section 5, FTC Act
- 71. Copy with care Overlooking ownership Understand user generated content Trademark trouble Disclose diamonds Engaged employees Balance backgrounds Concerted conundrum Forget false statements Taming terms of use
- 72. Terms of use Prohibit disclosure of trade secrets and confidential information; privacy Privacy • Liability under federal and state privacy laws • Liability for negligence, and other creative legal theories yet to be developed • Breach of your own privacy policy • Federal and state statutes, including GLBA and HIPAA
- 73. Clearly identify ownership of medium and content—who has control, including domain name Ownership of user generated content Terms of use
- 74. Terms of use • Include limitation of liability • Include representations and warranties from content providers
- 75. Terms of use • Include indemnification from content providers • Consent to jurisdiction
- 76. ?
- 77. Questions and answers John H. Rees Callister Nebeker & McCullough jhrees@cnmlaw.com 801.530.7388