Like It or Love It: How Not to Get Pinned (Legally) When Using Social Media to Promote Your Brand

by Buchalter
Contact

Twitter®, Instagram®, Facebook®, Pinterest® and other social media websites and apps are great ways to interact with friends, family and potential customers. They are great avenues for advertising and promotion of one’s business and brand. A brand owner can share their latest offerings, get people excited about new products, develop brand awareness, etc. quickly, relatively easily and economically.

However, in using social media to promote one’s business, there are a number of pitfalls that one must avoid. Using social media in relation to a business is not the same as using social media for personal, non-commercial use. While it may seem like everything online is fair game, it is not. Just because something is found online does not mean that it is OK to use. Trouble can and does arise rather quickly.

There are three primary legal considerations when using social media and they fall within the realm of intellectual property—copyrights, right of publicity and trademarks.  There is also another regulatory consideration when using social media and that is with regard to the Federal Trade Commission (“FTC”) and their guidelines regarding endorsements and native advertising.

Often times, it is difficult to distinguish whether you are using someone else’s intellectual property—one must be very cautious of doing so when posting on social media. The issues with using someone else’s copyrights, right of publicity and trademark in social media to promote a business is that the business is arguably profiting off of someone else’s property that does not belong to them. That can and does create a significant amount of conflict. Profiting from another’s property is what separates the use of social media in business from just personal use.

Copyrights protect works of authorship that are original and fixed in a tangible form or medium. This includes photographs, pictures, drawings, designs, songs, poems and other works. Many times, brand owners see pictures of celebrities out in public wearing their clothes on various blogs and websites. Although this can be extremely exciting for the brand owner, it is unwise to share these photos on social media without clearing them first.  We will discuss more about celebrity endorsements, below.

Often times, pictures found online are the subject of copyrights or are copyright protectable. Photographers or artists who create the photographs obtain copyright registrations for those photos and retain attorneys (often times the attorneys work on a contingent basis) to protect their intellectual property. Attorneys have been known to use reverse image search software to find where those photos were posted online. If the photos appear on a business’s social media account, they will often times send a cease and desist letter and request compensation in the thousands. If you refuse to submit to their demands you will most likely be threatened with a lawsuit against you, or worse, they will just go ahead and file a lawsuit against you. Sadly, while it does seem disingenuous, many times they have a colorable case since their client has a copyright registration and their client’s photo was used without authorization for commercial purposes. Often times, where companies get hit the hardest are when a copyright registration was granted prior to the use occurring.  At that point, by law, the plaintiff may be entitled to statutory or treble damages.

How does one avoid these situations?  Determine where the photo came from. Get a license for the photo. Look to see if the photo is in the public domain. Do not just repost the photo. This happens not only with celebrity photos, but also with photos that appear to be stock photos, vintage photos (often times those “vintage” photos aren’t really vintage) online. Unless there is a license that comes with a photo, you should not use what you find online. Feel free to post all the photos you take, but be cautious when it comes to posting photos from unknown sources.

In addition to a potential copyright claim over the use of a photo, there is a danger with using a celebrity or well-known person’s photo.  These people could raise a right of publicity claim. Right of publicity is the right to use one’s name, likeness or identity for a commercial purpose. It applies when someone uses a celebrity name, likeness or voice and can range anywhere from a picture or silhouette to a famous quote. It may create a false and misleading impression that that person is endorsing the product. A famous person does not need to be alive for a claim to be made, their estate can still make the claim for them. The laws vary from state to state and applicable law is determined by where the celebrity resides or died, but as a rule of thumb, do not use the image, name, likeness or even quotes from a celebrity to promote your products. If you would like to do that, contact them, speak with their agent and try to obtain a license or endorsement.

Another social media concern is trademarks. Trademarks protect brands and their identity. Trademarks can be a simple word, slogan, logo, design or even sound. Trademarks are used as source identifiers to help consumers identify where a particular product originates from.

As a rule of thumb, one does not wish to cause any confusion with another brand owner. Thus, in using social media, be aware of the potential trademarks of others. Do not use anyone’s brand name.   The only exception in using someone’s trademark is in comparing your product to another’s. It’s part of the trademark doctrine of “fair use”. One can use a competitor’s trademark (but only as much as necessary to accurately identify the product) to compare their product with another’s product.

There may be a funny slogan or brand name that you want to make a play on, but if there is a possibility consumers will immediately think of the other brand owner and be confused, then it would be best not do it. It could cause the other brand owner to bring forth trademark infringement claims. It does not take much for someone to send a cease and desist letter.

Lastly, if a company reaches an endorsement deal, sponsorship arrangement, or even gives a product for free to a celebrity, social media influencer or other well-known individual to post, they need to be cautious of the posts.  The relationship between the parties needs to be disclosed.  The FTC has pursued claims against companies who do not clearly and conspicuously disclose their relationship with certain social media influencers who promote their products.  The FTC is trying to protect consumers from being misled by false relationships.  Their rationale is that consumers are likely to give more credibility to opinions that are not sponsored.  As a result, companies should take care to make sure that their relationships are accurately disclosed.  Typically, while it does not seem “organic” the use of the hashtags #ad or #sponsored are often used.

In sum, while social media is a great marketing tool, businesses should exercise caution when using it and set forth guidelines for their social media teams. One must look to where they are obtaining their posts, pictures and inspiration from and review whether their post would cause any confusion with or cause a false association with another.  Or, in the case where there is a relationship between a social media influencer and a company, the relationship must be accurately disclosed.  If there are any questions or potential confusion in one’s commercial use of social media, then consult with an experienced attorney.

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.

© Buchalter | Attorney Advertising

Written by:

Buchalter
Contact
more
less

Buchalter on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.