Social Media Legal Issues: (Post Number 5): Copyright, Trademark, and other Intellectual Property (IP) issues
Intellectual property (“IP”) issues, particularly issues surrounding copyright law, are issues every business is likely to encounter when engaging with customers via social media. Copying and pasting a picture, song, video, document, or webpage onto your business’ profile to share via social media is easy. And many social media users are doing it.
Nevertheless, sharing “original works of authorship fixed in any tangible medium” (i.e. original content) created by others, unless you have explicit permission to do so, is usually in violation of the copyright laws meant to protect, and by extension promote, the creation of original content.
And intentionally or inadvertently associating your business, your products, or your service with the trademarks of another can open you to liability for infringement.
To protect your business when marketing via social media, you and your employees should understand what intellectual property is protected by law, the specific exceptions that may allow you to share certain content, the potential cost of violating IP laws, and how you can get permission to use content:
What IP is protected by law?
“Intellectual Property” laws generally refer to those laws governing patents, copyrights, trademarks, and trade secrets. In the realm of social media, the laws governing trade secrets, copyrights, and trademarks are particularly important. However, it should be noted that inventors with a novel process, machine, etc. who have not yet filed a patent should be careful sharing information about their invention via social media (or any other medium) or risk ending up on the wrong side of a patent dispute like Elisha Gray.
For more information regarding social media and trade secrets, check out Post Number Four in our Social Media Legal Issues series, which discusses protecting your business’ trade secrets and other confidential information.
After reading our “Crash Course on Intellectual Property Law,” you will likely have a basic understanding of copyright laws and what they are meant to protect. The predominant law governing copyright is Title 17 of the United States Code. It defines the protection of copyright laws as extending to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” In essence, this means that copyright law protects original content from being distributed, displayed, or copied without the copyright owner’s consent.
Copyrights vest automatically in the creator of the original content—they do not require registration, using the work in conjunction with the symbol ©, or the use of any other measures in order to vest in the creator.
Therefore, if you did not create the content you are sharing on social media, copyright laws likely prohibit you from using it without the owner’s consent. The common practices of copying and pasting excerpts of content to “fill space” or succinctly state something already succinctly stated, playing music in the background of your YouTube video, copying images and pasting them in your posts or on your page, and copying html to use on your own site, are all copyright infringing activities—unless you created the content, have a license to use it, or your use falls under one of the exceptions explained below.
Moreover, your business can be liable for copyright infringement even if it did not “personally” use the copyrighted material if it “induces” the infringement or vicariously infringes. Accordingly, if your business benefits from someone else’s copyright infringement (e.g. the infringing acts of a marketing agent, employee, etc.), and your company is in position to prevent it, your company could be liable. To my knowledge this issue has yet to materialize in a public way in the realm of social media, but the implications are apparent.
Your business should take steps to educate and monitor employees and third parties with regard to the proper use of copyrighted material on social media or risk exposing itself to liability.
According to the U.S. Patent and Trademark office, a trademark is “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.” The term “trademark” also generally encompasses the concept of service marks (i.e. marks that identify and distinguish a source of services, as opposed to goods).
Like copyrights, trademark protection automatically vests in the owner of a mark. However, not all words, phrases, symbols, or designs are trademarks. To qualify for protection, a trademark must be distinctive, it must not be confusingly similar to an existing mark, and it must not be deceiving.
While not required, registering a trademark has distinct advantages. To further protect a mark, take advantage of certain statutory protections, and secure the right to access courts with more expansive jurisdiction when pursuing any trademark claim, owners can also register their marks with the USPTO in the US and in other countries by utilizing the Madrid Protocol.
Trademarks are designed to reward companies who invest in the quality of their product or service by ensuring customers can easily identify the source of the particular good. After all, a company would not likely invest in making its product the highest quality if a competitor could make an inferior product, package it or promote it the same as the company, and siphon away the business of unsuspecting customers. Accordingly, trademark laws protect trademark owners from infringement, which falls into two categories, “likelihood of confusion” and “dilution.”
To avoid infringing the trademark rights of others while using social media, you must avoid using trademarks in any manner that could cause consumer confusion or dilute the famous mark of another company.
The use of your trademarks and the trademarks of others via social media should be carried out following largely the same practices already observed for “traditional media.” That is, you should avoid using marks that could cause a consumer to be confused as to the source of your goods, especially any marks similar to another mark, and particularly a registered trademark. For example, it would be unwise to invite via YouTube customers of a sporting goods manufacturer, supplier, or retailer to “Just do it” without Nike’s blessing, just as it would be unwise for a diamond wholesaler or retailer to advertise “A diamond is forever” on its Facebook page without DeBeers consent.
Further, you should be cognizant of the way you refer to or use the marks of your competitors and others in the marketplace to avoid using those marks in a way that could be dilutive. For example, while it may not cause consumer confusion to use Twitter to advertise your newly developed ergonomic office chair as a “Ford,” Ford Motor Company would likely contend that it dilutes their brand.
So what are the “exceptions” that allow me to share others’ content?
The “exceptions” allowing your business to share protected content via social media are very narrow.
Copyright laws allow for the “fair use” of copyrighted material without securing the owner’s permission. This “exception” allows anyone to use the copyrighted material of another for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. However, the first factor used to determine whether the use of another’s copyright falls under this exception is whether the use is for commercial vs. non-profit educational purposes. Accordingly, your business should be careful relying on the protection of fair use when using another’s copyright. For more information on fair use, check out this Good Business post.
Another “exception” to the protection afforded by copyright laws is the first sale doctrine. This gives the owner of a legitimately acquired copy of a copyrighted work the right to resell the work. However, it is important to note with regard to social media that many acquisitions of copyrighted material in the digital realm involve the grant of licenses rather than outright sales, rendering this doctrine inapplicable. Also, the first sale doctrine does not allow legitimate purchasers to make copies of the purchased work for resale or exhibition (i.e. posting on your blog or page).
The trademarks of others can be used in advertising, including on social media, subject to provisions comparable to copyright “fair use”. That is, the use of another’s trademark must be for a purpose society deems more important than protecting the property of another business (i.e. the 1st amendment and fair competition).
The acceptable uses of another’s trademarks include using them for purposes such as identification of a good or service, comparative advertising, advertising that you deal in the particular trademarked good or service (e.g. repair or replace) or are an authorized retailer, criticism, and parody. However, all trademark uses require that you are truthful, that you use the minimum information necessary to reference the particular trademarked good or service, and that you do not confuse the consumer.
And what are the costs associated with violating IP laws?
Some commentators on IP issues, including many business owners, contend that enforcing these laws online is too difficult and thus represents a minimal risk. To some extent this is true—the vast quantity of information on social media (and the web generally) does make it difficult to enforce IP law. However, a number of services help companies and individuals monitor their brand, track online plagiarism, and search images “in reverse.” More importantly, because you may be able to get away with violating the law does not make it right.
If you do get caught intentionally or inadvertently violating IP laws on social media, you may face stiff penalties. Typically, a plaintiff in an IP infringement case will ask the court for money damages and an injunction requiring the infringing party to stop its infringing activity.
An injunction may simply require you to stop the activity, but in some cases it may also result in your business having to turn over its website domain, social media account, or even shut down its entire online operation.
Depending on the type of IP, money damages may be actual damages, actual damages and the recovery of wrongfully gained profits, or statutory damages. If the infringement was wilful or egregious, these damages can be tripled and attorney’s fees and costs may be added.
For most infringement on social media, the “penalty” will be handed down by the social media platform. Depending on the severity and type of infringement, the platform will either remove the infringing content or remove your profile at the request of the copyright owner. Accordingly, your company should be careful to avoid forfeiting the resources you’ve devoted to building your social media profile. Check out Facebook’s terms regarding “Protecting Other People’s Rights,” Twitter’s “Trademark Policy” and “Copyright Policy”, LinkedIn’s policy regarding copyright and trademark violations, YouTube’s Copyright Center, or this Mashable article on how Youtube fights copyright infringement for more details.
So how do I get permission to use content?
To use protected content you must either buy out the copyright owner’s rights completely or obtain a license to use the content. This generally means you must contact the owner or the owner’s representative and negotiate a transaction.
You may also be able to obtain a license to use content if it is for a particular (generally non-commercial) purpose through Creative Commons or a similar organization.
Do not be afraid to ask for permission, as it is often granted, especially in cases where your use of the content would benefit the owner.
Should you have any questions regarding intellectual property law or any other social media topic, please comment below, contact us, or subscribe to our free Q&A service. Stay tuned for our next post in the Social Media Legal Issues series, in which we will discuss social media employment law issues.