The $ 6 Million Tweet: Avoiding Social Media’s Legal Pitfalls When Promoting Your Brand

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The $ 6 Million Tweet: Avoiding Social Media’s Legal Pitfalls When Promoting Your Brand

By Sarvey Askarieh, Esq.

Today, as more and more companies begin to use social media as a tool to reach their target audience and consumer, they face more and more exposure to liabilities through improper distribution of their social media content.

Only this past month, Actress, Katherine Heigl, filed a $ 6 million suit against drug store chain, Duane Reade, for tweeting a paparazzi photo of her carrying their shopping bags in NYC, with an accompanying tweet which said, “Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.”

Heigl is claiming infringement of her right of publicity under New York law and violation of the Federal Lanham Act for false advertising. Although, the Lanham Act (a.k.a Trademark Act) is a federal statute that regulates the use of trademarks in commercial activity, it also covers federal false advertising claims.

Recently, photographer, Daniel Morel, was awarded $1.2 million for damages in his suit against Getty Images and Agence France-Presse.  Morel alleged that his photos which he posted on his Twitter account were used by these companies without his permission.

So what can companies do? Be aware of the content that is put out via social media representing your brand and company. Educate your bloggers, employees and others in charge of promoting your company via social media networks on the dos and don’ts.

Dos:

  • Set in place a Social Media Policy (which should have specific standards for social media usage and guidance).
  • Use, distribute and/or publish content that is truthful and accurate.
  • Make sure you are in compliance with FTC regulations and requirements for blogging and social media when promoting your brand & company.
  • Make sure that the content you publish and distribute is content that is either in the public domain, falls under a “fair use” exception, or that you outright own or have permission to use. All contents put out via social media have intellectual property rights attached to them. This includes logos, slogans, photographs, written material or the use of someone’s photographed image.

 

Don’ts:

  • Don’t use content that is defamatory towards another. Defamatory language is false language/statement that injures another’s reputation. Defamatory statements can be written (libelous) or spoken (slanderous). In the context of social media, defamation is almost always a result of a libelous statement.

-In CA the elements for defamation are:
(1) Publication of a statement of fact (Publication, in the context of defamation, does not mean it must be in print. A statement is considered published when it is made to a 3rd party); (2) that is false,(3) unprivileged; (4) has a natural tendency to injure or which causes “special damage;” and (5) the defendant’s fault in publishing the statement amounted to at least negligence.

*When Public Officials, Public Figures and Limited Public Figures—are the plaintiffs bringing suit for defamation, they must prove that the defendant acted with “actual malice” as opposed to acting merely negligent (i.e. knowing that the statements were false or recklessly disregarding their falsity). However, regardless of the extra element of proof required in these situations, it does not deter a celebrity or public figure from bringing a lawsuit against your company.

*Defamation via social media typically occurs with a post, comment, review or video/audio statement.

  • Don’t use, copy, distribute and/or publish content that you do not own or have the right of use. Again, all contents put out via social media have intellectual property rights attached to them. Make sure that you either own the intellectual property right to the content or have permission to use and distribute the content in the manner in which it will be used.
  • Don’t ignore or change the terms of your licensing agreement.  If you have obtained permission from the intellectual property holder to use and distribute content, make sure that your company’s use of such content follows and abides by the terms of the licensing agreement.
  • For example, if your company has a licensing agreement to use another’s trademark, photograph, image or music, make sure that you do not use such content after the termination date in your agreement. Do not think or believe that it’s lawful to unilaterally extend the licensing agreement.  If there is a termination date in the agreement, it’s there for a reason.  Many companies get sued because they fail to do the periodic review and oversight necessary of their licensing agreements and continue to use content well after the termination date or in a manner not permitted.

    Lastly, if you are unsure whether you can lawfully use a specific content DO seek counsel from a licensed attorney, beforehand.  Is a simple tweet or Facebook post worth a $ 6 million lawsuit for your company to defend?

    This article is for educational and informational purposes only. It does not constitute legal opinion or advice.  If you wish to contact Yevras Law Group (YLG) for your company’s legal needs, please call 424-270-0064 or use the contact form.