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“Avoiding Common Trademark and Copyright Issues in Social Media”

InsideCounsel Magazine By Jonathan Hudis and Hillary J. Wucherer

Social media provides endless ways to inform and engage customers across multiple platforms. The breakneck pace and continuous demand for content, however, provides many opportunities to infringe others’ intellectual property rights. We offer some suggestions to reduce common instances of trademark and copyright exposure in the use of social media platforms. With proper training, planning, and oversight, social media infringement liability can be minimized.

Understand the Risks—Intellectual Property Law and Social Media

Trademark and copyright laws apply to social media in most of the same ways as they apply to traditional marketing. With few exceptions, social media activities are considered commercial because they are designed for interaction with customers. This means one cannot usually claim fair use to defend against the infringement or misappropriation of another’s intellectual property in the social media space. Importantly, employees who post content using official company accounts are usually deemed to speak for the company.

For both trademark and copyright infringement, a rights holder can file a takedown request with the social media platform to have the infringing post removed. This will result in a marketing campaign hole and can jeopardize the company’s account access. The rights holder also can file an infringement suit in court, potentially resulting in an award of money damages (including per view or download), injunctive relief, and attorneys fees. With such suits, the resulting bad press, loss of customers and potential boycotts can be just as damaging—or more so—than monetary awards.

Trademark Law Basics

A trademark identifies the source of products or services, distinguishing them from the products or services of others. Trademark infringement liability is found when there is confusion as to the source of products or services. Trademark rights are acquired through use, and owners can have common law rights even without a registration. Consequently, if a word, phrase, or design in a social media post is confusingly similar to another’s trademark and is used to promote similar or related products or services, the trademark owner having prior rights can object to the use (whether its mark is registered or not). This includes use of words and phrases in hashtags, captions, stories, and other platform-specific features.

Copyright Law Basics

Copyright law applies to original works of art in all forms of media, including photos, music, articles, videos, and certain website content. The law offers automatic protection to works fixed in a tangible medium. Additionally, copyrights can be transferred, licensed, and inherited, and rights can live on after an author’s death. Copyright law gives the owner certain exclusive rights in the work, such as the right to display the work (including posting the work on social media), to make copies of the work (including re-posting), and to prepare different versions of the work. One must have permission to use a work—it is not enough to credit the author. Also, merely because a work is publicly available does not mean it is in the public domain.

Understand Your Company’s Online Presence and Procedures

To reduce risk, we recommend understanding your company’s exposure. Ask your marketing department questions such as:

  • What social media platforms does the company use (e.g., Facebook, Twitter, YouTube, LinkedIn, Instagram, WordPress, Snapchat, Pinterest, Periscope, etc.)?
  • What types of media are used on each platform (e.g., photos, text, videos, music, etc.)?
  • Who has account access and posting rights, and what is the company’s posting procedure?

Train Your Tweeters

Everyone with access to the company’s social media accounts should be trained in basic intellectual property law principles and should keep these principles in mind when posting (or re-posting) on behalf of the company. At a minimum, each post should be reviewed for:

  • Trademarks:
    • Search Trademark Office records and the Internet to determine whether the proposed words, phrases, and designs are confusingly similar to others’ trademarks.
    • If photos contain others’ trademarked products, remove or blur the trademarks.
  • Copyrights:
    • Inquire about the origin of artwork, music, photos, videos, etc.
    • If the company obtained permission to use a work on a social media account, ensure all planned uses (especially any off-platform uses) were disclosed to the rights holder.
    • Avoid posts that encourage followers to infringe (e.g., a tweet asking followers to upload their version of a pop star’s famous song).
    • For licensed works, confirm that the license covers the intended use (for example, a license may cover music to be played at an event but not allow for YouTube videos of the event).

Plan Your Posts

To appear spontaneous and connected, it is typical to post about topics and events that are relevant to a certain target audience. However, this culture of “reactvertising” can strain the relationship between legal and marketing. Nonetheless, it is possible to maintain the appearance of spontaneity while giving the legal team a chance to pre-approve posts. Many companies find it useful to implement a social media calendar, looking ahead to predictable holidays and events (including pre-approval of multiple versions of a post to cover all potential outcomes). This gives time to buy, license, or create content to avoid infringing others’ rights.

Provide Oversight and Partner With Marketing

There are other ways the legal team can partner with the marketing department to reduce social media liability. Consider designating a legal team member to follow the company’s social media accounts and provide real-time legal review for those instances where live posting is truly necessary. To avoid accidental offensive and embarrassing posts on a company account, consider restricting employees from posting to both company and individual accounts from the same device. Additionally, have a crisis plan in case of a social media gaffe, infringement allegation or rogue employee poster.

By understanding your company’s online presence and implementing training, planning, and oversight procedures, your legal and marketing teams can partner to empower social media posters and minimize trademark and copyright risks in social media.