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© 2012 Lathrop & Gage LLP
Presented by:
Lincoln D. Bandlow, Esq.Lathrop & Gage LLP
1888 Century Park East, Suite 1000Los Angeles, CA 90067
310-789-4600lbandlow@lathropgage.com
I CAN’T BELIEVE I [LITIG]ATE THE WHOLE THING:HOW PROMOTIONAL USE OF SOCIAL MEDIA
CAN GET YOU SUED
© 2012 Lathrop & Gage LLP
Publisher Liability
DefamationRight of PrivacyCopyright InfringementTrademark InfringementIdea Submission
© 2012 Lathrop & Gage LLP
Defamation
1. Publication2. of a defamatory statement3. that is “of and concerning” plaintiff4. that is false5. that is made with the requisite degree of fault6. Damages
© 2012 Lathrop & Gage LLP
Privacy Torts• Common Law of Privacy
– Article written in 1890, Harvard Law Review, by Warren and Brandeis.
• Right to be let alone.
• Today - most states either recognize common law privacy rights, or have statutes covering such rights.
• Four torts of invasion of privacy– Intrusion upon the plaintiff's physical and mental solitude or seclusion– Public disclosure of private facts.– Publicity that places the plaintiff in a false light.– Appropriation, for the defendant's benefit or advantage, of the
plaintiff's name or likeness. (Right of publicity).
© 2012 Lathrop & Gage LLP
Intrusion
• Focus is on newsgathering behaviors rather than what is published.
• Elements of Intrusion claim:– Intentional intrusion (physical or otherwise)– on the private affairs or concerns of another– done in a manner that is highly offensive to a reasonable
person.
© 2012 Lathrop & Gage LLP
Private Facts
Elements:• Public disclosure• Of a private fact• Which would be offensive and objectionable to a
reasonable person• Which is not of legitimate public concern
– If a matter of public record, by law a “matter of public concern.”
© 2012 Lathrop & Gage LLP
False Light
– Similar to defamation– Elements:
• Giving publicity• To a false statement• That is of and concerning the plaintiff• Which places the plaintiff in a false light highly
offensive to a reasonable person• Made with the requisite degree of fault• Damages
© 2012 Lathrop & Gage LLP
Right of Publicity
• Claim stems from the unauthorized use of person’s name, voice, likeness or identity (including sound-alike)
• Variety of legal claims can be asserted– Common law and statutory right of publicity claims– Lanham Act claims– Common law unfair competition
• California and many states recognize post mortem right of publicity
© 2012 Lathrop & Gage LLP
Right of Publicity
• Basic elements:– Defendant’s use of plaintiff’s identity to defendant’s
commercial or other advantage– Lack of consent– Damages
• Actual damages (lost licensing fee)• Punitive damages• Profits• Attorneys fees
© 2012 Lathrop & Gage LLP
Copyright Infringement• When does copyright protection attach to a work?
– Copyright protection subsists from the time the work is created in a fixed form
– No need to register or take action
© 2012 Lathrop & Gage LLP
Copyright Infringement• Copyright owner has five basic exclusive rights:
– right to reproduce (copy) the work– right to make derivative works (adapt) based on the
original;– right to distribute (by sale, license, rental, etc.) to the public
copies of the work– right to perform the work publicly– right to display the work publicly
© 2012 Lathrop & Gage LLP
Copyright Infringement• How long does copyright last?
– For works created after January 1, 1978:• the term is life of the author (or last surviving author in case of a
joint work) plus 70 years; or• In case of a work made for hire, 95 years from first publication or
120 years from date of creation, whichever is shorter– For works created before January 1, 1978:
• Generally, for works published between 1923 and December 31, 1977, the duration is a first term of 28 years and a renewal term of 67 years for a total of 95 years.
• But it can get complicated (notice, registration issues) – call the lawyer!
© 2012 Lathrop & Gage LLP
Copyright Infringement• Definition of infringement is simple – it is any violation of one
or more of the aforementioned exclusive rights
• “Strict Liability” scheme: no state of mind requirement for infringement– Lack of intent may be relevant to reducing damages, but is
no defense to liability
© 2012 Lathrop & Gage LLP
Copyright Infringement – Fair Use• Section 107 enumerates four factors:
– (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
– (2) the nature of the copyrighted work;– (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and– (4) the effect of the use upon the potential market for or
value of the copyrighted work.
© 2012 Lathrop & Gage LLP
Trademark Infringement / Dilution• Trademark infringment
• No need for registration• Likelihood of consumer confusion• Dilution – Tarnishment or blurring
© 2012 Lathrop & Gage LLP
THANK YOU!
Presented by:Lincoln D. Bandlow, Esq.lbandlow@lathropgage.com
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