Posts tagged social media law
The “Instagram Act” and How to Protect Your Photos Online
May 8th
By Kerry Gorgone {grow} Contributing Columnist
The Internet is a bit like the Wild West when it comes to protecting intellectual property and a new law makes it even a little more difficult to lay claim to your images without some proactive measures on your part.
The controversial Enterprise and Regulatory Reform Act, which just received royal assent in the U.K., permits the use of “orphan works” — copyrighted works for which the owner cannot be identified. In most cases, the owner is dead, although it’s also possible that he or she simply has no interest in laying claim to the work.
Permitted uses under the new law would include digitizing archival library collections of unpublished works for purposes of preservation, but the law also allows commercial, for-profit uses of these works, such as advertising.
Photography groups vehemently opposed the legislation on the grounds that they stand to lose ownership and control over any images they post online. Critics have compared the law to the sweeping changes that Instagram made (and later unmade) to the app’s terms of use in December 2012.
Artists and photographers everywhere need to take proactive measures to protect their creative works, placing watermarks on images prior to uploading them online, and populating metadata with ownership information.
The U.K. media is also recommending that photographers and artists register each individual work with the U.S. Copyright Office or the PLUS Registry in the U.K. to ensure that they are identifiable. This way, even if someone could strip identifying information out of an image and repost it online, an interested owner can always come forward to claim their work. Many have cited the cost and time required to register each individual work as prohibitive, but at the moment, there aren’t many options.
Individual authors / artists registering through the U.S. Copyright Office could try registering works as a compilation, provided they published them all within the same year. (37 CFR 202.3(b)(10)) The filing fee for registering groups of photos is currently $65. At minimum, this reduces the likelihood that a work will be considered “orphaned” in the first instance.
Obstacles abound for copyright holders, including the fact that the U.S. Copyright Office does not offer a reverse image search. In the U.K., the PLUS Registry only holds names, and the “upload and search on an image” function does not yet work. Still, anything is better than nothing, given that the law has passed.
Another important thing to note is that the U.S. Copyright Office saves images for only ten years, unless the copyright holder pays an additional $470 for “full-term retention of a published deposit,” so the value of registration after that point is questionable.
One thing photographers can do is monitor Google for uses of their copyrighted works. Google’s sophisticated search technology does permit reverse image searches, so users can upload their copyrighted image and see matching images identified by Google. This will help copyright owners to detect infringing uses, so they can assert their rights against the infringing party.
As theoretically devastating as this development is for photographers, I really think that most works affected will be works no owner will ever claim; images that previously could not be used because of a potential copyright claim that would never materialize.
Companies don’t want legal headaches anymore than you do. They’re unlikely to intentionally use works that someone might sue over. Given the huge body of available images, there’s no reason to think they’d elect to steal a copyrighted work when they could find (or create) any number of suitable images for advertising purposes.
Bottom line: protect yourself to the extent you can. Wouldn’t you do that anyway?
Kerry O’Shea Gorgone, JD/MBA, is an attorney who teaches New Media Marketing in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: KerryGorgone
Photo courtesy Flickr Creative Commons umjeandoan
Sued for a Retweet: Being Snarky Might be Libelous
Dec 12th
By Kerry Gorgone, {grow} Contributing Columnist
Can an innocent re-tweet get you into legal trouble? Absolutely, as thousands of Twitter users recently discovered.
Defamation laws in the U.K. are stricter than in the United States (although reform is currently underway) and Lord Alistair McAlpine intends to wield those laws against 10,000+ people who spread a false BBC story alleging that an unidentified Tory was a child molester. Twitter users quickly began speculating that McAlpine was the subject of the piece, and he’s begun threatening those who shared the story with a libel lawsuit.
One click to retweet the story could cost a defendant tens of thousands of dollars, depending on the size of his or her audience. Apparently, counsel for McAlpine is using a tiered system, requiring small settlements and apologies from Twitter users with small follower bases, but increasing the demand from those with large followings.
How did this happen? It’s not as though those Twitter users who re-shared the story wrote it.
Twitter and defamation
Defamation works this way: you publish statements that tend to damage someone else’s reputation. “Publish” might mean you write and post the story, but it could also mean that you repeat it. Gossiping at the bar would be slander (spoken defamation). Retweeting could constitute written defamation, or libel.
In the United States, it’s less likely that Twitter users would be found liable for sharing the story at issue here, because public figures (like Lord McAlpine, a politician) have a higher burden of proof in defamation cases under U.S. law.
Specifically, a public figure seeking to recover damages for defamation must prove “actual malice,” meaning that the defendant knew the story was untrue, or published it “in reckless disregard” as to whether it was true. In other words, you had reason to think it wasn’t true, but published it anyway.
Most people under this standard could be off the hook in the McAlpine scenario, as a reputable news source like the BBC would seem to be trustworthy, e.g. they would not be sharing the story “in reckless disregard” as to its truth, because they would likely assume it had been vetted by the major media company before publishing.
Will the law chill free speech?
In the case of private citizens, recovery for defamation becomes easier, although bringing suit opens a proverbial can of worms: the plaintiff would subject himself to discovery (the process where the defense can search for evidence to prove the truth of the allegedly defamatory statements). Anyone would balk at the level of exposure inherent in the litigation process.
In the U.K., however, the burden is on the defendant (the retweeter) to prove the truth of the statement. This is costly, not to mention a virtual impossibility in most cases, as retweeters generally have no actual relationship with the subject of their statements.
Libel lawsuits both abroad and in the U.S. have chilled online speech among those who’d prefer to avoid court costs (everyone!).
Here’s a tip to provide an ounce of prevention: Type “allegedly” in front of the potentially defamatory statement. It takes two seconds, and it could spare you legal headaches, not to mention save you thousands of dollars. Allegedly.
Kerry O’Shea Gorgone, JD/MBA, teaches New Media Marketing in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone
The essential guide to minimizing legal risks in Social Media Marketing
Oct 24th
By {grow} Contributing Columnist Kerry Gorgone
Nothing spoils a great marketing campaign like a cease and desist letter. As an attorney, I’m fascinated by how fast and loose most people play on the web, just inviting such a letter!
Whether you ultimately win or lose, playing the litigation game can cost more money than most businesses can afford. Of course, there’s always the chance someone will sue you, warranted or not, but here are some tips for minimizing risk with web-based content.
1. The difference between LINKING and SCRAPING
The absolute safest course of action is to create your own original content, from the copy on your website to the videos you post to YouTube and the images you upload to Pinterest.
Contrary to popular belief, providing attribution for content you’ve copied and pasted (aka “scraping”) does not protect you from liability. If anything, it increases the risk you’ll get sued by alerting the content owner to the infringement. Of course, scraping someone else’s blog content is a no-no.
Linking, on the other hand, is generally legal. People post content online hoping it will be seen and shared. They can hardly complain after the fact when you share a link to that content, provided you don’t reproduce it wholesale on your own site or social media feed.
The problem with Pinterest and similar sites is that you copy the image itself and upload it, which technically violates copyright. While a smart content owner shouldn’t sue over this use, in my opinion, that doesn’t mean they won’t. Read the terms of use for each social network carefully before jumping in, and if you choose to share content, be sure to link, as opposed to copying and pasting, or even embedding.
The same goes for images. Be sure to “watermark” your images. Make sure your pictures include your URL or company name, so you protect your own intellectual property rights.
2. Go the extra step and get permission.
Without permission, using someone else’s content is infringement. With permission, it’s free publicity for them, great content for you. Agreement is win/win, as opposed to litigation, which is generally lose/lose. Just the act of seeking permission can also create new connections. It can be a networking tool. Most people are honored to be asked. So take that step.
3. Use content that’s licensed under Creative Commons.
If you’ve encountered writer’s block and can’t get permission for any suitable content that someone else has created, consider using content released pursuant to a Creative Commons license. These licenses allow use of the subject work, provided certain conditions are met.
Creative Commons licenses range from very permissive, requiring only attribution (credit), to more restrictive, such as licenses forbidding any change to the work. As a marketer, always avoid material released under a Creative Commons license that forbids commercial use.
4. Choose an original name.
You can save yourself headaches right out of the gate by choosing a unique name for your company, blog, brand or product. This is why we see so many crazy names on the web like ZipperFish and Stagnant Ape (kidding). Search existing trademarks. Avoid anything in the same industry that comes too close, or anything that looks similar. Bear in mind that each state has a trademark registration system, too, so be sure and search the state registry for the state your business is based out of, as well as the federal system.
5. Don’t play games with games.
Having online games or competitions can be tricky because you can’t violate the law when conducting an online contest, giveaway or sweepstakes. First and foremost, avoid “lotteries,” which involve people paying for a chance to win. These are illegal in most countries except for state lotteries and authorized raffles. When running a sweepstakes, be scrupulous about posting the rules, and keep them consistent throughout the promotion period. Changing the game halfway through will likely get you into trouble with each state’s Attorney General, not to mention the Federal Trade Commission.
State clearly who is eligible to participate, what they need to do, how winners will be selected, etc. Always include “void where prohibited,” to ensure you are in compliance with any state regulations banning your promotion.
If you’re running a contest based on skill, either make your contest “no purchase necessary,” or exclude entries from states where a purchase requirement is illegal. Again, explain in detail how people can enter and how winners will be chosen.
Whatever type of promotion you run, get permission from entrants up front to use their image and likeness should they win.
6. Be honest (It’s the law!)
Be accurate in any statements you publish via social media. Lying about competitors or their products can get you sued for defamation or interference with contractual relations. Lying about your own product can get you fined for violating truth in advertising laws.When engaging your prospects via social media, your content should not consist of sales pitches anyway, but since you’re likely to sell at some point, remember: honesty is the only policy.
This holds doubly true for any disclosures that the FTC may require (PDF). What’s clearly sponsored content to you might look like your own, unbiased opinion to the average web user, so when in doubt, disclose. There’s virtually no downside. There are even free online tools that can help you to create your own custom disclosure statement.
The FTC assesses any complaints on a case-by-case basis, so figuring out what’s going to pass muster can be a challenge for bloggers. Your best bet is to disclose in the post itself if you’ve received anything of value in exchange for blogging about a product, service or company. The FTC has indicated that a “disclosure” button or other blanket solution may not go far enough to ensure that your readers are fully informed.
7. Use tools like Hootsuite with caution.
I’m a huge fan of social media management tools like Hootsuite, Seesmic, and TweetDeck that enable you to populate numerous social network feeds from a single application. The risk in using these, of course, is the ease with which you can send a personal post from a company account. Notable incidents include KitchenAid’s unfortunate foray into politics via accidental tweet, as well as the tweet that went out from Chrysler’s official feed disparaging Detroit drivers.An ounce of prevention is worth a pound of cure: disable all personal accounts from the services you use to populate your company feeds.
In this day and age, people can sue anyone (and frequently do), but implementing these suggestions can help to minimize the risk that you’d be found liable, which makes a lawsuit less attractive to your opponent.
What concerns do you have about the law and your social media presence?
Kerry O’Shea Gorgone, JD/MBA, teaches New Media Marketing in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone
Illustration courtesy BigStock.com
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