Legal concepts every social media marketer should know: Part III -- Use of third-party images, graphics, and content

by BakerHostetler

Editor's Note: This blog post was originally published on September 11, 2013, courtesy of iMedia Connection's Blog. It is repurposed with permission.

It’s often said that imitation is the sincerest form of flattery. But when it comes to running an online marketing campaign or social media site, imitating (or straight-up copying) other peoples’ content can be the quickest way to an expensive lawsuit. In this third installment of “Legal concepts every social media marketer should know”, we’ll run down the best practices for digital marketers using third-party content in their campaigns. Chances are, whether it’s your website design, the models in your ads, or even the code in your mobile app, somewhere, somehow, your campaign may include content licensed or purchased from a third-party. A little knowledge of the common pitfalls in using third-party content can go a long way in ensuring your campaign doesn’t get derailed by a lawsuit or the threat of one. Be sure to also check-out “Legal concepts every social media marketer should know: Part I -Consumer Privacy" and “Part II: Rules of the Road for Online Advertising” and stay tuned for the last installment on user-genrated content.

Part Three: Use of Third-Party Images, Graphics, and Content

Word to the wise – if you think dealing with legal is a pain, just wait until you get a cease-and-desist letter claiming you hijacked someone else’s content for your marketing campaign. Copyright law grants authors automatic protection over almost any creative works they may produce. This allows authors to keep control over exactly how their creative expression may be used, and who may use it. Copyright law protects a wide range of things, including musical recordings, paintings, photographs, and written expression such as novels and blogs. Violating (or “infringing”) someone’s copyright is generally preventable, yet it remains one of the most common legal trip-ups for online marketers. Unlike privacy compliance, the rules here are pretty clear and well known. Create it yourself, get a license, or make sure you’ve got a release. So why the problem? Most frequently, tight deadlines, a large number of “chefs in the kitchen”, and the pressure of keeping up with current trends can cause slip-ups. It’s always better to catch this on the front end. A couple key areas you should look out for include:

  • Graphics and Images—The rule for graphics and images incorporated into a website is simple: if you don’t own it or have a license, you can’t use it. Photographers, designers, and image services can be highly protective of their work, and with the help of Google Image Search, they can easily track down infringers. Many websites try to avoid the risk of infringement by licensing their images and graphics from services such as ShutterStock or iStockPhoto. However, these services use a range of licenses, each with their own specific restrictions on the use of its images. A common mistake for web developers is to assume any use of a licensed graphic is okay. Be aware that there are a range of licensed uses and keep track of what you have permission to do.
  • Fair Use Defense: It is the rare social media copyright conversation that doesn’t include the term “fair use.” Fair Use is a defense against copyright infringement that gives others the use of copyrighted work without permission or license if the use is a “fair” one. Courts generally look to (1) the purpose of the use, e.g., commercial or nonprofit, (2) the nature of the work, e.g., creative or factual, published or unpublished, (3) the amount and substance taken from the copyrighted work, e.g., how much and what is taken from the old for the new one, and (4) the economic effect on the value of the copyrighted work, e.g., does the new piece effectively replace the old one. Generally speaking, criticism, commentary, news reporting, or teaching qualifies as “fair use.” Although, as Harvard legal professor Lawrence Lessig recently found out when one of his online lectures was removed from YouTube, interpretations of fair use in teaching can vary significantly between academics and copyright holders. A transformative use of the copyrighted work – meaning one that supersedes the meaning and expression of the old work – can also be considered “fair use” even if it is commercial, e.g., 2 Live Crew’s use of Roy Orbison’s “Oh Pretty Woman.” That said, fair use is a highly fact intensive analysis and if you intend to use any copyright work or portion of copyrighted work you should contact your lawyer early and often.
  • Social Media Integration—Many websites incorporate some type of social media functionality. For example, many sites let users “like” or “tweet” content directly from that website. For the most part, social media sites like Facebook and Twitter are incredibly encouraging of this integration. After all, you’re giving them business. However, these social media sites are also very protective of their image. They have very specific branding guidelines for businesses and websites that integrate their services. These include, for example, restrictions on the type and sizes of logos that may be used, placement of marks, and how exactly the integration must appear on the third-party website. Can you have people “like” content or products directly from your site? Sure. Can you replace Facebook’s thumbs up logo with a picture of a Ninja Turtle saying “righteous”? Unfortunately no, Facebook generally wants their thumb and the word “like” in just the exact color and layout they have designed.
  • Content from Social Media Users—When an internet user posts a picture to a social media site like Facebook, Twitter or Instagram, that user generally retains full ownership of his or her copyright in the post. However, that user typically gives up a license to the social media site allowing it to use and display the post how it see fit—but only that site. With very limited exceptions (see fair use defense), news agencies, marketers, and other companies don’t have the right to rip photos off of social media sites and start using them as their own. Even if a user posts the perfect action shot of a company’s product, that company can’t later scoop up the photo for its marketing campaign without obtaining that user’s permission. The Washington Post, Getty and French news service, Agence France Presse, recently found themselves in some legal hot water over this issue after they exploited several photos that had been pulled from a Twitter account without the Twitter user’s permission. A Federal Judge in New York ruled that this use infringed the Twitter user’s copyrights in the photos and that the infringing news agencies could be liable for up to $150,000 per work infringed. For a more detailed discussion of best practices with user generated content in digital marketing campaigns, check out the upcoming part four of this series.
  • Right of Publicity—A subject of frequent litigation, marketers and advertisers must be careful not to violate state “right of publicity” laws. The “right of publicity” generally protects an individual’s image, name, voice, and likeness from being commercially exploited without his or her permission. For online advertisers and marketers, complying with these laws generally boils down to one thing—obtaining consent from any individuals whose “likeness” is used. Seems common sense, so why the problem? “Likeness” can be an inclusive concept. Using a celebrity impersonator, a famous sounding voice (think Morgan Freeman), or other well-known, identifying feature of a person can trigger a lawsuit. Celebrities sell and it’s often tempting to try and invoke their image in advertising. But misappropriating someone’s image can be a fast track to a lawsuit for online advertisers and marketers. For instance, in 2009 Woody Allen obtained a $5 million settlement from American Apparel after they featured a look-a-like of him in an advertising campaign. Because the more prominent “right of publicity” lawsuits feature celebrities, a frequent misconception is that these laws only protect famous individuals. Not true. Under almost all state laws any individual can sue you for commercial exploitation of their likeness.

For any third-party content you may use in your advertising campaign, the key is to have a solid understanding of where it came from, why you’re allowed to use it, and what the rules for use are. Being able to answer these questions before initiating an advertising campaign can save you the heartache of having to respond (and pay for responding to) a cease-and-desist letter down the road.

Stay tuned for the fourth and final part of this series, where we will review the best practices for incorporating user-generated content into your online marketing campaigns.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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