use and protection of ip in social media and apps
TRANSCRIPT
Use and Protection of IP in Social Media and Apps
Indiana University McKinney School of Law
Joel E. Tragesser September 29, 2015
Social media is a great way to advertise, sell product, and enhance the image of your brand.
When posting to social media, ask:
1. Where did I get this image, phrase, idea? Does my company own it?
2. If hyperlinking, to whom am I hyperlinking? Why?
3. Will the post reflect positively on my company?
Social Media and Intellectual Property
Handling Real Time Advertising
Dealing with Social Media Errors
• Use of someone’s name, identity, likeness or persona
• Through which Defendant received a commercial advantage
• Use was without consent
• Injury to Plaintiff
Elements of a Right of Publicity Claim
• Incidental Use
• First Amendment
What are defenses to right of publicity?
Celebrity Images
• Applies to nearly all original work• Applies to all forms of media• Protection automatic• Notice–©2015 Quarles & Brady LLP. All rights
reserved. –Watermarks
Copyright Basics
• Ideas • Written laws, statues, regulations• Facts• Ingredients• Titles or newspaper headlines• Names or pseudonyms of individuals• Slogans and short phrases
What is not Covered
• If it is posted on the internet, it is in the public domain
• If I add attribution, it is not copyright infringement
• If it isn't commercial use, it isn't a copyright violation
• If it has our trademark, we can use it
• If I paid for it, I can alter it
Common Copyright Myths
• If it is posted on the internet, it is in the public domain– Truth: Assume it is copyrighted if you did not create it
– Applies to:
• Photographs
• Cartoon images
• Blog posts
• News articles
• News video
• Graphics depicting facts
Myths Corrected
• If I add attribution, it is not copyright infringement– Truth: attribution prevents plagiarism not copyright infringement
– Giving credit is not a legal defense to copyright infringement
– Copyright infringement is the unauthorized use of someone else’s copyrighted material
– After you get permission, attribution may be a requirement of the permission
– Still a good idea to provide attribution
Myths Corrected
• If it isn't commercial use, it isn't a copyright violation
– Truth: commercial use is a broadly interpreted term
– Intended for class room use in an educational institution
– Intended for dissemination to registered students
Myths Corrected
• If it has our trademark, we can use it– Truth: use of a trademark does not impact copyright laws
– Common situations:• Company pays to sponsor an event and trademark is used
• Positive press coverage related to company
– Beastie Boys sue Monster Beverage Corp.:• Music used in YouTube video recapping snowboarding event
• Beastie Boys awarded $1.7 million
Myths Corrected
• If I paid for it, I can alter it– Truth: law grants copyright owners the exclusive right to control
modifications of their works.
– If you add a new layer, you have created a derivative work.
– Robin Thicke and Pharrell Williams
Myths Corrected
Copyright Trolls
• Actual damages and infringer's profits• Statutory damages• Injunctive relief• Enhance damages for willfulness• Attorneys fees• Personal liability for officers and directors
Remedies Available to Trolls
• Beastie Boys awarded $1.7 million
• Blurred Lines Lawsuit approximately $7.4 million
• Statutory damages range from $750 to $30,000
• Possible $150,000 for enhance damages
How much money is at stake?
• “Hold” music played to the general public• Waiting room music, chemo music, etc.• Presentations presented to large group or posted
on the internet or intranet• Video footage looped in break rooms• Background music on commercials• Operating social media that allows user
generated content
High Risk Activities
• Stock image distributor– Getty Images• Images, video, music
– Thinkstock.com
– Bigstockphoto.com
– Canstockphoto.com
Solutions
• Purchase re-prints• Enter into license agreement • Get permission– Journals and newspapers want to grant
permission
– New York Time
– The FarSide Cartoons
• In advance know audience size and media format
Solutions
• Original content– Rephrase or summarize factual information
– Use of software programs to create content
Solutions
Mobile Apps
Solutions
• Exception to general rule • Work prepared by an employee within the scope
of his or her employment is owned by the employer
• Work specifically ordered or commissioned if the parties expressly agree in writing that the work will be work made for hire
Defining ownership: Work Made for Hire
• “Employee” means employee under general common law of agency
• An “independent contractor” is someone who is not an employee under the general common law of agency
Who is My Employee?
• A software program created by a staff programmer in the scope of his duties at a software company is work made for hire
• Software to run a website created by a third-party contractor is not work made for hire unless the parties specify as such in the contract
Examples
• Indemnification agreements–Marketing agencies – who clears copyrights
• Sponsorship agreements• License Agreements• Contract for the rights you want in advance
Solutions – Other Contracts
• Same rules apply to social media sites– Facebook, Twitter, Pinterest, YouTube
• Website owners can be liable for user posted content– Comment section on web pages – Photos uploaded by users
Copyrights and Social Media
• Digital Millennium Copyright Act (DMCA)• Safe Harbor if statutes provisions are
followed– Designate an agent with the Copyright Office to
receive infringement notifications and display contact info
– Remove allegedly infringing material
– Inform users of policy
Safe Harbor
• Comply with DMCA provisions
• Encourage User-Authored Content
• Monitor for and take down infringing content
Tips to Avoid Infringement
• Digital Millennium Copyright Act (DMCA)
• Credible sites have take down procedures
What if my content is infringed?
• Trade dress is the overall appearance of a product or package– Includes franchise restaurants– Dunkin’ Donuts
• Trademarks are source identifiers– Trademarks include slogans– Trademarks include logos
Trade Dress and Trademarks
Federal Trademark Registration
• Use of images containing trademarks• Humor for profit• Confusion over sponsorship• Use of slogans in a different context• Trade dress for humor
Potential Trademark Issues
Questions?
Joel E. Tragesser Quarles & Brady LLP
135 N Pennsylvania Street BMO Building Suite 2400
Indianapolis, IN 46204 www.quarles.com P: (317) 399-2811M: (317) 797-8576F: (317) 957-5011
©2015 Quarles & Brady LLP. This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.