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Social media
American Marketing AssociationNovember 15, 2011
John H. ReesCallister Nebeker & McCullough
Traditional marketing. . . What’s changed
Low barrier to entry
User generated content
Who took the photos . . . How tough is it
And when the wind blows . . . .
Courtesy of http://photoeverywhere.co.uk
Anonymity
Manipulation and false identity
Informality . . . 140 characters
55.6% of all statistics are fabricated. . . Anybody may join the game
Banks on Facebook . . . What happened
AmEx on Twitter
What’s around the next corner . . .
Copy with care Overlooking ownershipUnderstand user generated content (UGC)Trademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
True or false: Imitation is the highest form of flattery
Flattered
Be original
©
Injunction
Damages and lost profitsCrime
Statutory damages up to $150,000
Attorneys fees
Copyright infringement remedies . . . or what if I get caught
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
• 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
Copyright infringement
Standard for infringement:
• Valid copyright and copying of elements capable of protection
Fair use—parody, other usesWhat about employees who copy with or without employer’s knowledge
I won’t get caught . . . But statutory damages
Copy with care Overlooking ownershipUnderstand user generated content (UGC)Trademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
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
What is a campaign . . . And who owns it
Registration and technical contact
Review your contract
Confirm with the registrar
www.whois.comwww.networksolutions.com
Cybersquatting
Protect domain name
Which element has the greatest value
Channels
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
Copyright infringement
Vicarious liability
Contributory liability
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
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
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
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
Harassment
Invasion of privacy
Breach of confidentiality
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
®
• Damages• Court may award three times damages• Lost profits• Injunction• Attorney’s fees
Trademark infringement remedies
What is a trademark?
Word, name, symbol, device which identifies the source of goods and services• Slogans• Logos• Trade dress• Sounds• Colors• Smells
Pink
Sounds
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
Guess who?
• 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
Trademark rights accrue at common law by use in commerce—not by registration
First to use has rights to a trademarkCommon law rights include area of use, plus “zone of natural expansion”
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
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
Bloggingand FTC Guides
Endorsing products or services is anything but risk-free. In October, 2009, the Federal Trade 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 Federal Trade 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
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
Use by employees
Policy for employee use of social mediaHow much use of company resources and on company time is acceptable
Does the company encourage the use of social media
Policy for employeeuse 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
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
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
Background checks
Social media policies for background checksIssue: May an employer use information discovered through social media that is unrelated to the job and job performance
Title VII, Civil Rights Act
May not discriminate based on protected classes
Social media policies for background checksMay 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
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
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
Concerted activity by employees
At will employees not really at will
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
No false, misleading, or deceptive practices or statements
Section 5, FTC Act
Copy with care Overlooking ownershipUnderstand user generated contentTrademark troubleDisclose diamondsEngaged employeesBalance backgroundsConcerted conundrumForget false statementsTaming terms of use
Terms of useProhibit 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
Clearly identify ownership of medium and content—who has control, including domain name
Ownership of user generated content
Terms of use
Terms of use
• Include limitation of liability
• Include representations and warranties from content providers
Terms of use
• Include indemnification from content providers
• Consent to jurisdiction
?
Questions and answers
John H. ReesCallister Nebeker & McCullough