Wednesday, February 17, 2010

From iMedia: Social Media & Intellectual Property RIghts


  • Traditional intellectual property rights still apply to the internet and online forums
  • Make sure your agreements give you the right to use material in a new form of distribution
  • If your copyright is violated, put the offending party on notice

The online arena is still an emerging landscape for intellectual property (IP) where it is easy to misstep in trying to avoid IP landmines. Whether you are a small business looking for content to help get your website up and running or suddenly find an image or text you created on another company's site, it's possible you haven't taken the appropriate steps to protect yourself and prevent IP theft.

Marketers and online content creators often struggle to understand how traditional IP best practices apply to internet content. Major companies like Toyota and Skittles have recently come under fire for their usage of user-created media.

When Toyota launched a new microsite to promote the 4Runner SUV, the company did what others before had done: aggregated content from social networks to help promote the brand. This strategy didn't necessarily break the mold. After all, Skittles launched a similar website earlier this year with a much-publicized social media home page including Twitter feeds, comments from Facebook fans, and content from Flickr and YouTube.

Skittles ran into a problem with the inappropriate, and sometimes vulgar, content that appeared on the site, Toyota faced accusations of copyright infringement from photographers who had posted images on Flickr.

Social networks are free and flourish with user-generated content. The platform lends itself to a sharing environment, where copyrights and trademarks often aren't considered. However, as these sites become increasingly popular venues for marketing, a basic understanding of how IP law applies to online property will help you avoid finding yourself on either side of a dispute.

Here are a few simple steps to prevent an online intellectual property theft accusation:

1. Traditional intellectual property rights still apply to the internet and online forums.
There is a misconception in some quarters that if content appears online, particularly in a social forum or blog, it's public domain material. That's false.

An author of a statement and a trademark owner still control the rights to their copyrights and brands when they place their materials on the internet. One common element for online content is that the forum host typically posts a policy that notifies contributors that by placing content on the host website, the poster is granting the host a license to use and republish that content. While such policies might provide a valid license for the website host to republish material actually owned by its posters, it provides no license or rights to third parties visiting such websites.

2. Register your IP and know the scope of your licenses.
These are fundamental prerequisites to IP management. Copyrights protect expressions, which include a wide range of on- and offline content including writings, drawings, songs, pictures and movies. Trademarks protect identity. Registering your copyrights and trademarks enhances your rights, provides significant leverage in enforcing those rights and, in the case of trademarks, provides constructive notice nationwide of your rights.

Also, if you obtain permission to use material offline, you can't assume that it's fine for you to post or distribute that material electronically. You need to verify that the preexisting license included the right to use the material in the new form of distribution.

3. Prominently display your IP protection.
Many people copy online content out of ignorance. To help prevent this, post your notice of copyright in near proximity to your works. The notice should state the year the work was completed, the legal name of the entity/person that owns the work, and the copyright symbol.

The following is a standard format: ©2009 by Coats and Bennett, PLLC. A copyright footer on each page is not highly effective for giving notice that particular works on the page are copyright protected. If you operate a high-content site, it's a good idea to dedicate a page to "copyright information" where you state your position on other people using your content.

4. Understand who really owns the content you use.
Even if you incorporate properly licensed art in your brand's online presence, look behind the license. While you may have licensed the right to use an image from a particular author, does the image contain elements that the author has no rights to license for advertising?

For example, if you license a photograph of a person driving a sports car for use in an advertisement, you are most likely only licensing the copyright in that picture. If the person or car is identifiable, has the person in the picture and the product owner licensed or otherwise agreed to the use of their images in your advertisement? Such embedded images raise trademark and publicity rights, beyond the overall copyright.

Also, explore if agreements that were in place before you put the content online give the right to use the material in a new form of distribution.

5. Take action.
your copyright is violated, put the offending party on notice that they must immediately take down the image or text, or properly attribute credit and pay your licensing fee. Because there is a third party involved, you can also put the ISP and web host on notice that the website is violating your rights. If you receive notice that you are violating a copyright, react quickly. An uninformed mistake can typically be rectified, but you may face serious consequences if you ignore fair warning.

6. Don't confuse copyright infringement and plagiarism.
Copyright infringement occurs when someone makes an unauthorized copy of someone else's expression, or makes an unauthorized derivative that is substantially similar to the original works (when comparing the similarities). Plagiarism is passing off someone else's ideas or thoughts as your own. While it may get you expelled from some schools and professions, plagiarism itself is not illegal. Plagiarism might also involve copyright infringement, but not typically.

Plagiarism is avoided by giving proper attribution to others when you use and repeat their thoughts and ideas. Attribution avoids the charge of plagiarism, it is not, however, a defense or excuse for copyright infringement.

Managing copyrights and trademarks online typically involves applying traditional best practices and law to this new medium. Expanding to new forums like online sites can help grow your brand and connect with consumers, but also means that you have to steer clear of IP infringement and protect your content.

The old adage "if it looks too good to be true, it is" applies more than ever to online content. It is easy to copy and paste content onto your site or post it online without a copyright. However, this practice leaves open the possibility of an ensuing legal battle that could be far more costly and time-consuming than following best practices from the onset.

The potential consequences for infringing someone else's copyrights and/or trademarks include loss of your profits associated with the conduct, the other party's damages, enhanced damages, attorneys fees, and a permanent injunction prohibiting further publication, as well as corrective advertising explaining the past infringement. Under certain circumstances, a party can be liable for up to $150,000 in statutory damages for each instance of willful copyright infringement.

The IP rights landmines are real, but with proper attention and knowledge, they can be avoided.

Anthony J. Biller, Esq., is a member of Coats and Bennett and leads the firm's litigation practice.

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