Legal aspects of instagram merchandise activities - Sabrina Höhne

Legal Aspects of Instagram Merchandising Activities

16th of April 2016

Sabrina Höhne, LL.M.Lawyer

16.04.2016 | Legal Aspects of Instagram Merchandising Activities | Seite 2

Agenda

1. Activities on Instagram

2. Product Placement

3. Linking


Activities on Instagram - 1

Username• just giving once• rights raising out of § 12 BGB („law of names“)• attention must be paid to Trademarks

Avatar• attention must be paid to Trademarks• attention must be paid to Copyrights (regarding

photographeur/regarding shown person)Hashtag

• attention must be paid to „Law of names“ and• Trademarks and• Copyrights (regarding Hashtag-essays)

Images• attention must be paid to Copyrights (regarding

photographeur/regarding shown person) and• Trademarks

Texts• attention must be paid to Copyrights

German „Impressum“• Legally necessary for companies

Always keep an eye on competition law!



Username• No username can be found twice• Rights raising out of § 12 BGB („Law of names“)

Generally: no other names Generally: own name can be used 2 persons with the same name:

- law of „same-name-persons“ applys, means- Subuser is responsible for avoiding

missunderstandings raising out of the same name

- For instance by adding the place of business



Username• Pay attention to Trademarks

Commercial use of a trademark = generally a use as a Trademark Use as a Trademark if:

- Same sign or similar sign- In a commercial context- To name the products- As produced by own company

Mitght be: Trademark, company name, Titel (book, film…)



Avatar

• Pay attention to Trademarks Do not use trademarked logos

- Combined Word/Figurativ marks- Figurativ marks- Image of 3d Marks

Do not use images of trademarked packagings- If not trademarked, maybe copyrights- Maybe competition law applies



Avatar• Pay attention to copyrights

Image of a protected work = illegal reproduction (§ 16 UrhG)

Copyrights: photographer/holder of rights (f.i.Fotoalia) – maybe „Social Media Licence“ is needed- Free imaging of public buildings

(Panoramafreiheit) - § 59 UrhG: imaging public buildings as long as you can

see it from public places – you may not image the buildings from inside without permission

- § 63 UrhG: duty to indicate the source



Avatar• Pay attention to rights of the shown person (§§ 22 ff

KunstUrhG) Spreading the image only with permission Permission deemed to be giving if consideration has

been giving Up to 10 Years after the dead of the shown person:

permission needs to be giving by the relatives of the person

• Without permission you may spread: Images regarding the contemporary history Images showing persons only as accessory parts Images showing persons during a meeting Images that are not made to order if their spreading

belongs to a certain interest of art



Hashtag• Pay attention to „law of names“

No popular/famous names Own name can be used Collision with names of third persons:

- law of „same-name-persons“ apply• Pay attention to Trademarks

Generally use as a Trademark Direct use = advertising Indirect use = company identification

• Pay attention to copyrights (Essay beyond Hashtag) Embedding of images (see „Avatar“) Embedding external texts = not without

permission



Images• Pay attention to Copyrights

photographeur Holder of rights (f.i.Fotoalia)

• Licence to Instagram to use your images/texts: „non-exclusive, fully paid und royalty-free,

transferable, worldwide licence with the right to sublicence“ (Instagram-Terms and Conditions: 19.01.2013) https://help.instagram.com/478745558852511/?ref=hc_fnav)

Risk of financial damages!- User is responsible for complying with

applicable law

https://help.instagram.com/478745558852511/?ref=hc_fnav

https://help.instagram.com/478745558852511/?ref=hc_fnav



Images• Pay attention to the personal rights of the shown

person see „Avatar“

• Pay attention to Trademarks see previous slides

Texts• Pay attention to copyrights

Use external texts only with permission Keep in mind: your licence to instagram

Impressum• German duty for commercial use



German Competition law:

You may not:• Untrue statement to be part of a certain codex;• Use a certificate without permission;• Untrue statement, a certain codex is officially accepted; • Advertisments masked as information (Product

Placement)• Advertisment for products/services that are similar to

other companies, if it happens to cheat regarding the manufacturer



German competitin law:

It is further illegal to:

• tell that one can increase the chance to win a price by buying a certain product/service

• Demand kids directly to buy a certain product or to ask their parents to buy the product; BGH decision dated 18.09.2014, Az. I ZR 34/12:

illegal: „Schnapp Dir die günstige Gelegenheit und verpasse Deiner Rüstung & Waffen das gewisse ‘Etwas‘“

Reasons: Duzen und kindgerechte Sprache• …..


Product placement - 1

Advertisments masked as information

• Always illegal• Duty: seperate Advertisment and editorial part • Editorial part = objectiv debate • Advertisment = sales promotion• No seperation if the editorial part contains information to

the product that shall be promoted (f.i.articel regarding loss of hair includes an image of the product against hair loss)


Product placement - 2

• Illegal because the user may not realize the fact that the article is financed by the company

• Means: no illegal product placement, if: The editorial part That is -at the same time- used as a sales promotion Makes clear, that the company finances the article

- Problematical with respect to instagram „Influencer“

- BGH Az: I ZR 2/11 „sponsored by“ is not enough- Consequenzes: written warnings/injunctive

relief/claim for damages ...


Linking - 1

• Distinguish between:1. Legality of Linking

Hyperlink: - legal, if no technical protection systems are

being avoided

Framing/Embedding: - legal, if the content has been legally published

(user must prove this!) and- no technical protection systems are being

avoided


Linking - 2

Thumbnails (Vorschaubilder): - legal, if no technical protection systems are

being avoided

Sharing:- No decisions- My opinion: see Framing/Embedding


Linking - 3

2. Liability for content

Hyperlink

• Reference to another Website or document• Reference to own Website-> liability: see previous slides• Reference to external Website-> liability for disturbance

Violation of auditing duties Case-by-case-review Tip: continuous sampling + record in writing Check obvious violation of Trademarks, Copyrights,

competition law Disclaimer can not eliminate liability


Linking - 4

Framing/Embedding

• Incorporation of content Own content

- See previous slides External content

- liability for disturbance, if- content is recognizable as external content (if not –

liabil in the same way as for own content) EuGH: embedding of Youtube-scenes No copyright violation, if:

- No new public is addressed and- no technical protection systems are being avoided


Linking - 5

Sharing• Generally external content will not be shown as own

content• Copyright owner generally recognizable• But: liability for disturbance possible (no decisions so far)• My opinion: liability for disturbance possible from the

moment of acknowledgement of a violation of rights

Thumbnails• See slides 10, 11

Abstracts (summary in own words): • Free use (no violation of copyrights)• Case-by-case-review if certain phrases are copied


Linking - 6

Streaming• So far: no violation of copyrights

Pop-Ups• Use of external content: see previous slides• May violate competition law: (LG Köln, 12.03.2004, AZ: 31

O 145/04)

Thank youfor your attention!