Don’t Let Intellectual Property Accidents Crash Your Social Media Marketing
B. Brett Heavner and Margaret A. Esquenet

Immediate and inexpensive, social media drives advertising directly to your target consumer.  Facebook, Instagram, Twitter, dedicated blogs, and self-hosted chat forums are important business marketing platforms.  Unfortunately, the ease and speed of posting often leads to thoughtless intellectual property fouls because advertisers often don’t review posts as thoroughly as “real advertising.”  Worse, social media’s swift distribution and user-amplification can substantially increase both the risk of exposure and the scope of damage an infringement may cause.  Moreover, violations can stem from a business’ own marketing posts as well as posts by paid influencers and others.  However, by complying with the following four rules of the road, advertisers can avoid these intellectual property accidents.

First, identify all intellectual property within each post, particularly copyright, trademark, right of privacy, and right of publicity.  Copyright protects an author’s exclusive right to control his or her creative works, including visual art, music, and text.  Trademark protects the names, logos, and slogans businesses use to identify their products and services.  Right of privacy protects a person from public exposure of private information.  Right of publicity protects an individual’s ability monetize her own name or likeness.  If the post contains any graphical elements, photographs, music, competitor comparisons, images of people, or endorsements, it will almost certainly include at least one of these types of intellectual property.

Second, confirm that you have the right to use the intellectual property that you have identified.  Many advertisers mistakenly believe that if they find graphics, art, photography, or music posted on the internet it is free to use in their own postings.  This assumption is wrong and can be costly.  While some web sources indicate that the materials on their site are free to use, most do not grant such universal permission.  Before incorporating any internet-sourced materials into your marketing post, you must obtain permission from the owners of those materials.  If you cannot identify the owner, it is best not to use the materials.  Similarly, if any photograph or art you wish to use contains a depiction of a person who can be identified—whether or not they are famous—you must obtain permission from that person.  The safest course to avoid copyright, right of privacy, and right of publicity infringement is to stick with art that your employees have created for your business or licensed, and to only depict people who have specifically consented to appear in the post.

Third, make certain that your post is accurate and not misleading.   For example, while it is considered “fair use” to reference a competitor’s trademark to make a comparison to your goods or services, that comparison must be completely accurate to avoid false advertising and trademark infringement allegations by the competitor, consumers, government regulators, or the platform itself.  Similarly, do not use the trademarks of other businesses to falsely suggest that they endorse your products or services.  Stick to the exact facts of your relationship with the trademark owner (i.e., “we are experienced in repairing brand X products” and not an exaggeration like “we are the preferred repair shop for brand X products”).  When commenting on public institutions or public figures, do not use their names or images in a way that could be construed as a testimonial or endorsement.  If you do pay influencers to market your business (either in money or goods/services) you need to disclose that relationship.  For example, a grocery chain was sued by a famous athlete for a post congratulating him on his induction into the hall of fame.  However, the post included photos of his jersey and a coupon for one of his “favorite” products.  A court found that the post falsely suggested that the athlete endorsed the store.

Fourth, for websites, blogs, and social media pages that you host, make certain that you have an effective method of removing user comments if a copyright owner objects to the post.  The Digital Millennium Copyright Act (DMCA) provides hosts with a “safe harbor” to avoid copyright infringement liability for problem user posts if the hosts meet certain requirements.  To take advantage of the DMCA, the host must designate an agent to receive complaints about copyright infringement and remove any objected-to posts within a reasonable time.  The designated agent must also be registered with the U.S. Copyright Office.  Although there is no statutory safe harbor for trademark infringement and right of privacy/publicity complaints, hosts would be well advised to identify a similar agent to receive those complaints to avoid liability as a “contributory infringer.”

By following these four rules, social media advertisers can reduce their risk of intellectual property “accidents” while still engaging with their customers using these rapid and economical marketing platforms.

B. Brett Heavner and Margaret A. Esquenet are associates of Finnegan