How to Avoid a Social Media Lawsuit – Trademark and Copyright in Social Media

Even in the era of #deletefacebook, businesses are using social media to develop their trademark and brand identity and connect with customers.  But they often overlook the legal ramifications that could arise.

• Social media has become as regular a part of life for many people on this planet as coffee.  It is impossible for businesses today to not have a presence on social media.
• Recent data breaches involving Cambridge Analytica and Facebook have caused many to reexamine the role of privacy in social media and if regulation is necessary.
• Businesses can easily violate copyright laws by posting copyrighted material.
• Businesses also, need to be vigilant to not use trademarked names in an improper way.
• How owns the data related to users on social media? Can it be sold? These are all questions that are currently being examined.

Social media provides many opportunities to help develop a trademark but their a also substantial pitfalls.

Despite the problems, businesses continue to develop a brand identity on social media

In today’s market, it’s almost impossible for a business to not be involved in social media. Facebook has surpassed Google (with 2 billion users) in terms of web metrics with over 2.2 billion users (as of 2017), up from 700 million in 2011.  Twitter and LinkedIn continue to grow as well.  Location-based services like Foursquare have become mainstream rather than the exception to the rule.  There are also overabundances of smaller social utilities, which are regularly popping up, from Tinder to Shapr.  However, the law has not been able to keep up with the rapid growth of social networks.

In the beginning… of the internet, before social media

When the Internet began to grow in the late 1990s, government and legal entities rushed to develop laws to govern the internet.  As a result, there are very few cases that have actually gone to court regarding social media and the laws governing them (while many have been settled outside of court). The reason? Nobody wants to be made an example of. 

Consequently, there are going to need to be some major lawsuits or decisions by federal courts and appellate courts to decide what are acceptable practices online for any change in the current business climate to take place.  There are legal ramifications for everything that is done online, and many people and businesses simply don’t understand that.

Of course with the recent data breach by Cambridge Analytica, who gained access to over 50 million Facebook users private information, along with the admissions from Facebook and Twitter that over 126 million Americans had seen posts on social media that was created by Russian government backed agents, we very well may see more regulation of social media.

Most common laws broken by businesses in social media

The reason why it is so difficult to navigate legalities in social media is that laws can be interpreted so many different ways, businesses run into obstacles often where they have one lawyer telling them one thing and another lawyer saying another.  Nothing is really black letter law yet.

That unknown legality and a bit of the sensation that it is the Wild West, means that companies are making a bounty of mistakes regularly and they likely don’t even know it.

Social media and copyright and trademark law

Copyright

According to the United States Copyright Office, a copyright is “a form of protection grounded in the US Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.”  In social media, users and businesses upload content (photos, videos, etc.), often including copyrighted material. Do you have a legal right to repost a photo or video without proper attribution? Just because content is online does not mean it can be reposted. Possible damages are up to $150,000 per violation.  However, at this point each individual or company must enforce this themselves.

If you don’t have the rights to use somebody else’s property in copyright or trademark, you’re risking a lawsuit.  This is a considerable problem that needs to be addressed, and Congress is trying to figure out what to do about copyrighted and trademarked property online.

Trademark

Trademarks, protect words, names, symbols or sounds (trade names, services names, logos, slogans, etc.) that distinguish the origin of goods or services.  In social media, falsely identifying yourself or misrepresentation could lead to legal liability.  Do you have the right to promote the Super Bowl in your Facebook contest?  Very likely the answer is, no, as brands pay lots of money for that exclusive right with the NFL.  We saw this recently occur with the NFL suing several churches who were advertising Super Bowl parties.  Or bars, advertising bootlegged broadcasts of UFC fights.

There is a question of privacy

Who owns the data that lives on the internet?  It’s a question asked many times over the years.  But with the rise of social media, users have become much more willing to share personal information, birthdays, addresses and phone number on Facebook, their present location on Foursquare, what entertainment they are currently watching, all programs which collect information on each user.  Who owns that data? And can you sell it to advertisers?  This is an issue that is front and center in the news recently, with the Facebook / Cambridge Analytica data breach.  But there are many instances where providers lawfully sell consumers private information.

The biggest problem is the use, storage and collection of data that is used in social media.  Both user-generated content and content pulled from other platforms leaves you open to potential legal issues.

Minimum requirements for businesses

At the very least, make sure the content your business is publishing is not copyrighted or trademarked and that you don’t improperly share user data.  Again, it may take a large legal ruling for brands to begin paying attention to social media law, but nobody wants to be that brand to be made an example of.

The current world presents us with a market where consumers have just as loud of a voice as companies, or employees have just as loud of a voice as the company that employs them, and that’s very different for all of the marketing folks, who are used to controlling messages and crafting an image and a brand.  In social media, that’s just not the way it is anymore, and brands are going to have to learn to deal with it.

Whether you want to file a trademark registration or a copyright registration or you’re involved in a dispute over a trademark or copyright, or a dispute involving social media you will want to consult with a trademark attorney or copyright attorney who can protect your rights.

Contact an attorney with Veritas Business Law, LLC for a free consultation.