An Intellectual Property Attorney`s Perspective on Social

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An Intellectual Property Attorney’s
Perspective on Social Media
What Your Mother Didn’t
Know to Tell You
Catherine A. Cavella, Esq.
©2012 Cavella & Associates, PLLC
[email protected]
??? Intellectual Property???
A Few IP Basics
• © = Copyright
• TM = Trademark
•
= Patent
• Tort Law
▫ Shh! - Privacy
▫
- Defamation
COPYRIGHT
The right to control copying and publication of
one’s creative works of artistic expression
TM or TRADEMARK
The right to be free from unfair competition
Businesses can have TM rights in anything
a customer would see as an indicator of service
or sponsorship of goods or services
TM or TRADEMARK
• Words, Logos, Slogans, Sounds … Anything
TORT LAW
PRIVACY – The right to expect your private (true)
facts, image, voice, persona not be made public
without your consent. Famous? Special Rules
DEFAMATION – The right to be free from
false & embarrassing or damaging content
publicized about you. Opinion? Free Speech
WHY SHOULD I CARE?
• Content providers are filing lawsuits over
unauthorized use of content on the web & social
media.
• Business & Brand Owners are waking up to
online violations of their rights.
Righthaven, U.S. Copyright Group, Others
TROLLS
ISP TAKEDOWN POLICIES
• If ISP (Facebook®, GoDaddy®, YouTube®, etc.)
receives notice of © or ™ infringement, will take
down the page unless item is removed
• Page owner can respond
• Repeat offenders may be permanently removed
POSTING DO’S & DON’TS
(Staying out of trouble)
PHOTOS & VIDEOS – Extra Care!
• Who took it?
• What’s in it?
▫
▫
▫
▫
▫
▫
People
Building
Artwork
Music
Movie Stills
Celebrities & Public Figures
POSTING DO’S & DON’TS
PHOTOS & VIDEOS: ASK
BEST PRACTICE:
Who took it?
Use your own photos:
©
Who’s in it?
Privacy
Are they famous?
Publicity
What’s in it?
©
TM
Is it embarrassing,
dangerous, or
offensive?
Defamation
Get License or Assignment*
Get Release
Purchase stock images from a
reputable site*
Use free downloads @ your own
risk!
You don’t know where they’ve been
POSTING DO’S & DON’TS
MUSIC: ASK
BEST PRACTICE:
Who wrote the song?
Who owns the recording?
(usually record label)
♪©
(P)
• Or record your own music
Where did you get it?
Do you own a License?
Commercial Music Library Record Collection iTunes®
Probably
No
• Buy or download from a music
library *
No
(not a “cover” – need license*)
POSTING DO’S & DON’TS
LINKS & LINK-THRUS:
BEST PRACTICE:
Links that retain your page
frame = © infringement
If you must link or repost,
as on Facebook®, use the page’s
“share” links
Top News (for illustration only! )
Any unauthorized link may be
TM infringement
Like
POSTING DO’S & DON’TS
COMPANY LOGOS & NAMES:
BEST PRACTICE:
Includes words, graphics, icons,
etc.
D O N’ T !
Even if you are doing it as
“free publicity”
JUST DON’T
(visualize Nike swoosh logo here)
POSTING DO’S & DON’TS
Information
TEXT PRESENTED AS FACT:ASK
Did you write it?
Is it about someone
else…?
or someone else’s
business?
Is it embarrassing,
dangerous, or
offensive?
©
Privacy
Defamation
Defamation
BEST PRACTICE:
• Post only text that was written
by you or your employees @
your direction
• Avoid gossip, post your news,
not someone else’s
• Do Not badmouth your
competitors – GOLDEN RULE
*LICENSES
• License = the right to use or copy IP
• Types = Commercial vs. noncommercial use
• Don’t Assume…Read & Ask Questions!
*LICENSES
• These Licenses May Not Be What You Think:
 CreativeCommons.org (e.g. Flickr®)
 Crowdsource Sites (e.g. 99designs.com)
 Digital Rights – Pandora; iTunes®; Kindle®
Owning a copy
≠
owning the copyright
• So you will still need to get a license, esp. for a commercial
use
BUT I HEARD IT’S FAIR USE (?)
BUT I HEARD IT’S FAIR USE (?)
TRUE OR FALSE:
You can use up to 5 notes or 10 seconds of a song
& it’s not infringement
FALSE
BUT I HEARD IT’S FAIR USE (?)
TRUE OR FALSE:
If you change it a little or add to it,
it’s OK (fair use)
FALSE
BUT I HEARD IT’S FAIR USE (?)
TRUE OR FALSE:
If you’re not using it to make $, it’s OK
FALSE
MORAL
FAIR USE is determined by a balancing test several factors are balanced.
No single factor determines the result.
Therefore, don’t assume!
EXAMPLES
EXAMPLES
DEFENDING YOUR TURF
(if you’re on the other side)
• POLICING – Brand/Reputation Monitoring
▫ www.KnowEm.com
▫ Google Alerts
DEFENDING YOUR TURF
(if you’re on the other side)
• Take Action:
Cease & Desist Letters
Can start with friendly “notice”, then
step it up if they don’t respond
DEFENDING YOUR TURF
(if you’re on the other side)
• Takedown Notices
▫ Notify ISP – use their form and be specific
▫ DMCA requires ISPs to have Takedown Policy
DEFENDING YOUR TURF
(if you’re on the other side)
TAKE ACTION PROMPTLY
(avoid acquiescence)
vs.
CONSIDER COST OF SUING
OTHER ISSUES FOR BUSINESS OWNERS
Ownership/Control of Posted Photos
• Usually the social media site controls,
not the poster
• Consequence – poster may not be able to remove
or prevent publicity
• When in doubt, DON’T POST
SOCIAL MEDIA & EMPLOYEES
EMPLOYEES’ ACCOUNTS
BEST PRACTICES:
• Twitter Account Password &
Follower List
• Maintain control over
employee’s social media
(assign and track account
names & passwords)
• LinkedIn Connections &
Profile
• They are IP!
Who owns them - the employer or
the employee?
2 Cases are testing, we don’t yet
know the answer
• Have written Social Media
Policy that all employees sign
explaining these practices!
TAKEAWAYS
• Know your Photos, Videos & Music
• Know your Licenses – Commercial
Use
• Monitor & Respond Accordingly
• Be Respectful (Golden Rule)
Q&A
TM
Catherine A. Cavella, Esq.
70 W. Oakland Avenue, Suite 316, Doylestown, PA 18901
215-348-1442
[email protected]
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