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

jhrees@cnmlaw.com801.530.7388