At a recent South by Southwest Interactive Festival
panel, four intellectual property experts delved into the intersection of IP law and social media. Professors Chip Stewart of Texas Christian University, Kathleen Olson of Lehigh University, and Victoria Ekstrand of Bowling Green State University, along with Riyad Omar, general counsel of NewsRight, explained three pitfalls that social media professionals should beware, and they offered tips for avoiding them.
1. Pictures posted on Twitter are still subject to copyright. The AFP v. Morel case involved pictures taken by Daniel Morel the day of the devastating Haitian earthquakes. Given the chaotic conditions, freelance photographer Morel devised an ingenious solution to limits on communicating with the outside world: He tweeted that he had pictures available for the media, and then posted the pictures to Twitpic, clearly marking them as copyrighted.
Although several media outlets bought the rights to use the photos, others used them without payment, authorization, or attribution. Morel sued, and Agence France-Presse defended on the grounds that Morel had waived his copyright in the images by posting them on Twitter.
Not so, ruled the court. The text of individual tweets are generally not copyrightable, because their brevity, their focus on facts and ideas rather than expression, and their lack of unique creativity fail to satisfy copyright requirements. But photos almost always satisfy those tests. That Morel posted the pictures on Twitter does not amount to a waiver of copyright; moreover, AFP could not rely on Twitter's terms of service with its customer Morel to defeat his rights to the pictures.
Tip: Be careful when using any picture, even one widely circulated through Twitter or Facebook. If you use a photo, the best practice is to obtain express permission to use it. At the very least, do not use photos without proper attribution and links at a minimum.
2. The "Hot News" Doctrine is alive and well. The "Hot News" Doctrine stems from a 1918 Supreme Court case in which AP sued another news service, INS, because the latter was stealing its content right out of AP stories. The Supreme Court found that although there is no copyright per se in "news," it granted a brief, limited right to the AP because the news service researched, broke and reported compelling stories. Some commentators had wondered whether the Hot News Doctrine could survive in an era of lightning-fast news cycles and reporting via Twitter.
In TheFlyOnTheWall.com case, the court ruled that the site could not repost financial information from financial firms, as this was unfair competition. The question was whether the defendant is involved in aggregation, where it merely scrapes other people's information and content off the Web, or whether it engages in a "transformative" action by adding to or altering the content, for example, by analyzing and commenting on it. It is this transformative action that allows for a "fair use" exemption to the prohibition on using another's copyrighted content.
Tip: Don't just scrape content. Instead transform content with your own creativity, and thereby avoid unfair competition or copyright violation claims.
3. E-personation is a dangerous game. Social media has often been used to comment upon, criticize, or to make fun of certain people, such as the famous fake Steve Jobs blog. Though such obvious parodies are probably still safe, plaintiffs are no longer limited to stalking and harassment laws when they believe detractors have gone too far, as three states, including California and Texas, have passed laws making e-personation a crime.
California law defines the act as, "knowingly and without consent credibly impersonates another actual person through or on an Internet website or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person." The threat of criminal action—in Texas the act is a felony—will cause a lot of people to re-evaluate trying such an approach. Though these laws only protect individuals, corporations have had some success battling e-personation by suing for trademark dilution. The trademark laws are very protective of a company's logos, names, and other marks.
Tip: When dealing with criticism or parody of individuals, be careful not to "credibly impersonate"—so using the word "fake" offers a good deal of protection. When dealing with criticism or parody of a corporation, learn about their trademarked logos and marks and try to avoid using them or at least transform them so that you can argue that there is no consumer confusion, an element necessary under trademark law.
Stephen J. Easley is the vice president for government affairs and general counsel of Heartland Networks. A version of this post first appeared on SmartBlog on Social Media.