Social networks are giving people the ability to share large volumes of writings, photos, and videos. It is all content, but also considered someone’s intellectual property. Business owners need to have an understanding of intellectual property in order not to walk into a legal minefield.
I spoke with Lisa Greenwald-Swire, a principal in one of the leading intellectual property law firms, Fish & Richardson. Her practice emphasizes trademarks and intellectual property. Her firm represents some of the world’s top technology companies. I asked her what trends she sees currently that should be on a business owner’s radar. Her top three were: infringement, brand protection, and rules regarding give-a-ways and promotions.
Ready to take a quick quiz to test your knowledge?
Question 1. Do you know the difference between copyright and trademark?
Answer: Copyright gives an originator of a creative work the right to publish and sell that work including blog posts, drawings, and music while a trademark is legally protected words or symbols or certain other distinguishing features representing products or services. Think logos such as the Nike “swoosh” or Apple Computer’s recent granting of the trademark for the phase, “There’s an app for that.”
What isn’t copyrightable is an idea. Just the expression of it is. Procedures, processes, concepts, and principles are not. Some works just can’t be because they are not fixed in a tangible medium such as unrecorded dance choreography and unrecorded lectures. Typefaces also fall out of copyright protection.
Infrigement involves any violation of the exclustive rights of the owner. It can be unintentional or intentional. This is where plagiarism fits in. Dilution of a trademark is common and when it happens it can cause confusion. An example would be someone associating with your brand for their gain when there is no official relationship. Fair Use refers to a use of copyrighted materials that does no violate the exclusive rights of the owner. A parody is one example such as the Twitter account called @att_fake_PR where the AT&T logo has been tweaked to look like the Death Star from Star Wars.
Question 2. Who owns the user-generated content posted to your company’s Facebook Page or YouTube channel?
Answer: It depends. On websites and social media platforms, the general rule is the content creator owns the underlying material; however, when a creator agrees to a user agreement on the website then the company obtains the rights to the user-generated content to use it as they see fit.
Question 3. Do you know what the laws in your state say regarding sweepstakes and promotions?
Answer: Each state has specific laws governing promotions, which include sweepstakes and contests. The reach of a promotion can cover many states or countries so are you compliant with those laws. Social media platforms also have specific guidelines. Many companies are using their Facebook Page for promotions. So do you know where giving away free products/services such as computers or trips fall legally? Facebook has very specific requirements and many companies are either unaware or ignoring these requirements. For example, companies are not allowed to publicize or administer a promotion opened or marketed to individuals under the age of 18. Best to consult with an attorney in this matter.
Question 4. Do you know what the Federal Trade Commission (FTC) Guidelines are regarding bloggers and social media marketing?
Answer: According to the FTC press release on Oct 5, 2009 regarding new guidelines:
“The post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.” What it comes down to is bloggers and social media marketers must now disclose if they are getting payment or free items to talk about a product or service. So if your company gives a product to a local blogger then the blogger must disclose in their post that your company gave it them.
How did you do? Those are important questions to have answers to as a business owner. Social media has opened new channels to connect with customers. It also has brought legal concerns as well. The same advertising and intellectual property rules apply to social media as with traditional advertising. Which basically means no false or misleading claims, endorsers must disclose their relationship with you, no “lifting” other’s content claiming it is yours, and dilution claims between you and a competitor.
How can you protect your business? While your work is automatically covered under copyright laws, you may want to go ahead a register with U.S. Copyright Office so it is on the public record and has a certificate of registration. This will make it easier to defend your copyright in court. To register your content at the U.S. Copyright Office starts with the fee of $35 if you file online. Trademark your logo or tagline at the US Patent and Trademark Office with fees starting to file online at $275. The initial invest of time and money will pay off in the long run about protecting your business’s intellectual property.
Second, it is very important to have a social media plan in place. This plan should cover the social media platforms used, who controls them, any endorsers, monitoring the plaforms looking out for your brand, and solicitation/management of user-generated content.
Lastly, a social media policy needs to be in place. You need to give employees including those using social media on behalf of company as well as for personal use, outside sales representatives, bloggers, and endorsers a clear set of guidelines. Implement written agreements with bloggers, endorsers and outside sales representatives making sure you retain the right to monitor content and remove anything objectionable. There are some free sites that generate customized social media policies such as Policy Tool or Lisa Greenwald-Swire,.
Greenwald-Swire recommends companies should consult with lawyers specializing in intellectual property. They can help you navigate the waters of copyright, trademark, and promotions as well as draft written agreements for bloggers, endorsers and outside sales representative. They help you protect your brand. To find an attorney specialized intellectual property, visit the International Trademark Association.
With the right preparation and monitoring, you can ensure that social media is a way to enhance your business rather than a way to open yourself up to lawsuits and other legal problems.
A condensed version of this post was published in the Lexington Herald-Leader on Monday, October 25, 2010.
NOTE: I’m not a legal expert by any means; however, this post was based on many questions/concerns I’ve received in my public relations practice.
