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IP: Examining the risks associated with corporate social media use

Companies and their employees must be aware of the laws governing copyrights and trademarks

Nearly all businesses with an Internet presence are affected by social media. The decision to utilize social media, the online exchange of user-generated content and information through websites, isn’t really a choice. Any successful business will turn to social media as way to increase revenues. Advertisements and traditional marketing campaigns have given way to social media and peer recommendations. It has been noted that if Facebook were a country, it would be the world’s third-largest, right behind China and India. If that weren’t enough to emphasize the reach of the social media revolution, YouTube is said to be the second-largest search engine in the world.

Social media's rapid growth has created both benefits and risks for businesses trying to engage the marketplace. Particularly, businesses are likely to encounter issues relating to copyrights and trademarks. In order for a business to protect itself in the social media context, it must fully understand and train its employees so they can comprehend the reach of intellectual property laws and the exceptions.

Intellectual property laws at their core seek to protect patents, copyrights, trade secrets and trademarks. In the social media context, copyright and trademarks are of particular concern and importance. While most businesses are concerned with enforcing their own intellectual property rights in connection with social media, the real risk is exposing your company to intellectual property enforcement by another business.

Copyrights protect original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Content cannot be distributed, displayed or copied without the copyright owner’s consent. Further, the copyright is automatic and does not require registration as a prerequisite for protection.

Common copyright violations include using an artist’s music or artwork in a YouTube video, or the shortcuts many rely upon to save time and costs of copying and pasting content. Before posting content, employees must ensure either that they own it, have permission to use it or fall within an exception.

However, there are exceptions to copyright law. The most often referenced exception is the fair use doctrine. The fair use doctrine allows a third party to use copyrighted material for the specific purposes of criticism, comment or news reporting. In assessing whether something falls under the fair use doctrine, the question of whether the use is commercial speech is critical. This exception allows customers to criticize a company’s copyrighted content on their Facebook page or via Twitter.

It is worth noting that social media outlets have incorporated copyright provisions in their terms of use policies that describe enforcement of other people’s rights as well as rights to user-generated content.

A trademark is defined as a word, phrase, symbol or design that identifies and distinguishes the source of the goods or services from those of another. While trademarks need not be registered to be protected since rights rest in connection with a brand’s use of a trademark, often times brands choose to register their trademarks for added protection.

The most basic rule is to avoid using another brand’s trademark in a way that is likely to cause confusion in the marketplace or dilute a famous trademark. This rule applies to social media in the same way it does to traditional media outlets. However, there is an exception. Companies can use another brand’s trademark for comparative advertising, criticism or parody.

Before posting any product updates online, employees should ensure that any statements made in connection with another brand are true. In addition, they should vet any references to another brand to verify that such use is not likely to cause confusion and is used for the sole purpose of comparative advertising or parody.

As social media use becomes more and more prevalent as a marketing and advertising tool, it will become increasingly important for companies and their employees to be aware of the laws governing copyrights and trademarks.

Contributing Author

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Marcella Ballard

Marcella Ballard is a partner at Venable LLP. Her practice covers a wide range of intellectual property matters, including trademark, copyright, trade secret, privacy rights,...

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Contributing Author

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Deborah Feinblum

Deborah Feinblum is an attorney at Venable LLP. She focuses her practice on a wide variety of intellectual property matters, including intellectual property litigation, trademark...

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