With social media moving so quickly and content being shared so readily, brands may lose control of their trademarks and copyrights. My colleague Christopher Budd has written a two-part blog on common sense content security in social media.
His posts rightly discuss that social media engagement requires some degree of foregoing control. At the same time, brands need to be sensitive to protecting their intellectual property. This post presents the top five mistakes marketers make that expose a brand’s intellectual property to risk.
1. COPYRIGHT INFRINGEMENT MISTAKE: Photographs on Google Images are not free for the taking. Regardless of whether a photograph bears a copyright or watermark symbol, it is not in the public domain. Someone holds the copyright. It may even be a famous organization like Getty Images. If you use these images, you may receive a cease and desist letter and a claim for financial damages.
Always take photographs from stock photo houses or buy rights directly from the copyright owner. Read the licenses to be sure you understand your rights. In addition, do not forget that a release from the photographer may not be a release from the copyright owner if the photograph was a “work for hire.” You may also need to obtain releases from people or the rights holders for famous sites or objects contained within the photographs.
In particular, people in the photographs have their own legal rights or privacy and publicity that a copyright owner has no authority to waive. Instead, you must remember to seek model releases from these people.
2. COPYRIGHT PROTECTION MISTAKE: While using social media increases the difficulty of protecting your copyrights, you should not think copyright protection is impossible on social media. Instead, you should take some essential steps to protect your copyrights. First, register any original expressions, whether they are artistic or written, with the US Copyright Office within three months of publication. (For more details about how to register, visit the US Copyright Office’s website which is full of circulars that walk you through the process.)
Registration will preserve your right to statutory damages and attorneys fees in the event someone does infringe your copyright. Second, make use of many social media websites’ Digital Millennium Copyright Act (DMCA) takedown provisions. These typically are found in the platforms’ terms and conditions or frequently asked questions. They outline steps to take if you believe your copyrighted materials have been used unlawfully and want the site to remove the offending material. (For more on You Tube’s Copyright School and its DMCA provisions, read here.)
Finally, take time to consider whether a social media site presents too much risk to the brand’s intellectual property. For example, Pinterest may create copyright risk and invite counterfeiters to do their nefarious work. (For more on Pinterest and intellectual property risk, read here.)
3. TRADEMARK INFRINGEMENT MISTAKE: Trademark infringement is not based on precise copying. The test for trademark infringement is likelihood of confusion in the marketplace. This means altering one word of a slogan may not ward off a trademark infringement claim if you market in similar trade channels with similar goods. Creating a social media page to comment on a well-known brand may invite a trademark infringement cease and desist letter if the page appears to be sponsored by the trademark owner itself. Take the time to create original trademarks.
4. TRADEMARK PROTECTION MISTAKE: To ensure that all uses of your trademarks inure to your benefit, avoid inconsistent usage of your trademarks. Instead, create trademark usage guidelines that promote the strength of the trademark and are applicable across all platforms and by all influencer marketers. In addition, too many trademark owners neglect to file for trademark registration which can offer statutory advantages and presumptions of rights throughout the United States.
In addition, take advantage of websites that offer verified pages, and always link back to your official website so consumers can easily determine if the social media page is official. At the same time, monitor the Internet for use of your trademarks that are fraudulent. Think twice, however, before shooting off an angry cease and desist letter. Many of those end up going viral on social media, creating a public relations backlash. At the same time, do not eschew enforcement against trademark infringement that has real potential to hurt the value of your intellectual property.
5. OWNERSHIP MISTAKE: The sticky issue of who owns social media accounts remains unanswered since the case of PhoneDog v. Kravitz, No. C11-3474, 2011 WL 5415612 (N.D. Cal. Nov 8, 2011), settled. Perhaps, in 2013, we will see another case that could lead to a precedent, but for now, brands need to take proactive steps to protect their reputations and their intangible assets. The first step is to file trademark applications for any social media handles that the brand wants to use across platforms and that incorporate the brand’s existing trademarks.
If your brand is franchised, you should create branding policies so franchisees make consistent use of trademarks in social media and so it is clear to consumers that they are looking at official brand feeds. In addition, your corporate entity that controls the franchise should establish administrative access rights to accounts that its official spokespeople or franchisees operate to strengthen its claims of ownership.
Remember that your trademarks and copyrights are corporate assets. You want to protect them, as you would any other asset, so they add value to your corporate holdings. In addition, if you protect your intellectual property, you can more readily leverage the power of social media to build your brand.