What you don't know,

can hurt you!

Melfi & Associates, PC

"I resolve legal issues for my clients and protect their digital assets and valuable proprietary

rights and provide results oriented and financially responsible legal services for forward thinking clients who operate within a Web 2.0

world.”

Trademarks, Copyrights & Patents

Intellectual Property Litigation

Infringement & Enforcement Matters

Document drafting (vendor contracts, Terms & Usages Agreements and Privacy Policies)

Social Media Policies

WEB 2.0

Web 2.0 is a term coined in 1999 to describe web sites that use technology beyond the static pages of earlier web sites.

Web 2.0 sites may allow users to interact and collaborate with each other in a social media dialogue as creators of user-generated content in a virtual community, in contrast to websites where people are limited to the passive viewing of content.

Reputation Attacks/ Digital Defamation

A libelous expression must be published to a third party, at minimum.

A libelous expression must result in some harm to the plaintiff. (evidence you have been injured)

The libel must specify an individual or entity in such a manner as to clearly indicate to the average reader who the individual or entity is.

The libelous expression should be based on provable assertion.

Defamation per se occurs when published libelous expressions are actionable at face value. (accusation of a crime, sexual misconduct, loathsome disease or unfit to run their business)

What it is not . . .

Someone writes and publishes something negative about you that is improvable. Opinions are not defamatory.

Someone writes and publishes something about you that is true. Age, race, beliefs etc. that are true are not defamatory.

Someone writes and publishes something negative about you without malice –when you are a public figure or celebrity. Libel must be intentional and without justification or it is not defamatory.

Steve Wynn v. Joe Francis

Steve Wynn v. Joe Francis (con’t.)

Francis: "Wynn threatened to kill me. He said he would hit me in the back of the head with a shovel and bury me in a hole in the desert.”

Wynn: “Joe Francis represents a new kind of criminal type: the digital assassin. He takes advantage of the protection afforded by the Internet to issue intentionally destructive charges against someone’s reputation, knowing full well that in the age of the Internet those statements will live forever. His actions present a new challenge to society created by technology and the instantaneous news cycle.  The inflammatory information goes up instantly and stays forever, unchallenged and unproven, to the misery and detriment of any citizen that is a victim. The only remedy is a long road, an expensive road, to a trial before 12 fellow citizens. Most citizens don’t have the time or the resources to defend themselves and find the truth in a courtroom before a jury of their peers. 

Right of Publicity (RoP)

The Right of Publicity can be defined as the right to control the commercial use of one’s identity.

The elements typically comprising the Right of Publicity are referred to as “name, image and likeness.”

The majority view is that the Right of Publicity extends to every individual, not just those who are famous. But as a practical matter, Right of Publicity disputes usually involve celebrities, since it is they who possess the names and images that help hype advertisements and sell products.

Right of Publicity and copyright considerations can simultaneously be implicated in a single usage. An advertisement featuring a celebrity’s picture may require authorization from the photographer for the copyright use, and from the celebrity for the Right of Publicity use.

RoP Examples

Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1989) and Waits v. Frito-Lay, Inc. 978 F.2d 1093 (9th Cir. 1992) - Bette Midler and Tom Waits declined to lend their distinctive voices to advertising jingles. Advertisers found sound-alike performers.

White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992). Samsung utilized a robot that looked and acted like Vanna White of “Wheel of Fortune.” This usage was an infringement because Samsung had deliberately pawned the image and popularity of White and because White was readily identifiable from the context of the use.

Infringing a celebrity’s Right of Publicity can be a costly error

the ability to control commercialization in the first place is as much a policy objective of the Right of Publicity as is providing revenue streams for the rightful recipient.

Social Media Policies

A social media policy is a corporate code of conduct that provides guidelines for employees who post content on the Internet either as part of their job or as a private person.

The goal of a social media policy is to set expectations for appropriate behavior and ensure that an employee's posts will not expose the company to legal problems or public embarrassment.

Range from specific to general – depends on the culture of the organization

NLRB & Social Media Lawsuits

According to the U.S. Chamber of Commerce, there is a rising number of cases before the NLRB questioning an employer’s “overbroad” policies restricting use of social media and those of an employer that unlawfully discharged or disciplined an employee over contents of social media posts.

Employers must take appropriate precautionary steps. Circulate and maintain an updated employee handbook that not only identifies the ground rules governing the workplace, but also addresses the new challenges presented by mobile technologies and social media.

The considerable threats for employers posed by an employee’s use of social media include suits involving defamation, First Amendment considerations, privacy, confidentiality and trade secrets, hiring and training concerns, online harassment — not to mention potential loss of business or bad press.

Stolen Identity

Identity theft is a form of stealing someone's identity in which someone pretends to be someone else by assuming that person's identity, typically in order to access resources or obtain credit and other benefits in that person's name.

Identity theft occurs when someone uses your personally identifying information, like your name, Social Security number, or credit card number, without your permission, to commit fraud or other crimes.

Stolen Identity Remedies

According to the FTC:

Place a fraud alert on your credit reports, and review your reports.

Close the accounts that you know, or believe, have been tampered with or opened fraudulently.

File a report with your local police or the police in the community where the identity theft took place.

File a complaint with the Federal Trade Commission.

Impersonation/ Personality Theft

An impersonator is someone who imitates or copies the behavior or actions of another.

Examples might be illegal immigrants, people hiding from creditors or other individuals, or those who simply want to become "anonymous" for personal reasons.

Another example are posers, a label given to people who use somebody else’s photos and information through social networking sites. Mostly, posers create believable stories involving friends of the real person they are imitating.

No punishable crime, might just be classified as a “hoax.”

Cybersquatting

Registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

Some cybersquatters put up derogatory remarks about the person or company the domain is meant to represent in an effort to encourage the subject to buy the domain from them

Cybersquatting Remedies

Domain name disputes involving alleged bad-faith registration are typically resolved using the Uniform Domain Name Resolution Policy (UDRP) process developed by the Internet Corporation for Assigned Names and Numbers (ICANN).

Under UDRP policy, successful complainants can have the names deleted or transferred to their ownership.

Under the ACPA (Anticybersquatting Consumer Protection Act) a cybersquatter can be held liable for actual damages or statutory damages in the amount of a maximum of $100,000 for each name found to be in violation, although application of this act in the form of actual fines assessed are few in number.

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