Photographer by Robert Cooke from Flickr (Creative Commons License)
People come to this site almost every day with questions about whether someone can post their picture on the internet without obtaining consent. Some people even ask if it’s a crime or whether they can sue.
Sue for what? Which of your rights have been violated?
Of course, each situation must be evaluated on its merits. It’s possible that a person is concerned with an intimate photo, a photograph that was taken in a bathroom, or circumstances where they are being harassed. I’m not saying that there aren’t situations where a person’s rights may have been violated; however, the frequency with which I get these questions makes me wonder whether most of these people have a legitimate legal concern or merely hurt feelings.
No Expectation of Privacy in Public
Remember, in the U.S., there is no expectation of privacy in anything you do in public (exceptions of course for places like bathrooms, confessionals, etc.). So, if someone snaps a photo of you that is less than flattering, and they post it on the internet, as long as they are not violating your rights, there’s nothing you can do about it.
Maybe they took a photo of you not putting your shopping cart away, walking around with your skirt tucked into your underwear, or texting while driving. I think there are much more important things to talk about in general and definitely that are worth of documenting permanently online; however, it’s not illegal. Just like it is not illegal to be stupid, it is not illegal to post stupid things online. The internet is full of stupid.
So What Do You Do?
Well, if you truly believe that you’ve been the victim of a crime or that your rights have been violated, contact the police or buy an hour with a lawyer to review your situation. You may be in a situation where your legal rights have not been violated but the posting itself and violates the terms that apply to the site where it was published. In that case, reporting the image to the website administrators may be sufficient to get it removed.
If it is purely a situation where you are merely angry or upset, and the person won’t remove the image when asked, let it go. If you’re embarrassed by your behavior, don’t do it again. If you’re in a situation where the image shows up if someone Googles your name, you can try to bury it by manipulating the search algorithm. Hopefully it’s not a situation where you screwed up so badly that the image or situation is going to dominate the search results for years to come.
On the Flip Side
If you’re thinking about snapping a picture of someone, check your motives. If you’ve taken a picture and you have the impulse to share it online, double and triple check your motives. What are the benefits of sharing this image? Are you being vindictive? If the situation were reversed, would you want an image of you in a similar situation posted? What if the person in the picture was your parent or significant other – would you post it then?
The person in the photo isn’t the only one at risk of losing face. Do you want to be the jerk who not only took this photo, but also shared it? You could harm yourself as well as the other person.
What is socially inappropriate and what is illegal are often two drastically different standards. My rule of thumb for this situations is the same: Think before you act. Think before you post. If you want to talk more about internet privacy or social media law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Speak No Evil by Robert Young from Flickr (Creative Commons License)
In the last week, several people have posted that YouTube pulled the ads from their videos because their content wasn’t “advertiser-friendly.”
What’s Advertiser-Friendly Content?
According to YouTube policies, ads can only be run on content that’s all-ages appropriate. “It has little to no inappropriate or mature content in the video stream, thumbnail, or metadata (such as in the video title). If the video does contain inappropriate content, the context is usually newsworthy or comedic and the creator’s intent is to inform or entertain (not offend or shock).”
According to YouTube, you can’t run ads against content that contains the following:
Sexually suggestive content;
Violence
Profanity or vulgar language
Harassment
Promotion of drugs
Sensitive subjects – including, war, political conflicts, natural disasters, and tragedies
If a user repeatedly posts videos that violate this policy, YouTube may suspend monetization on your whole channel. This could be problematic for content creators who make a living in part from their YouTube channel(s).
Their Site, Their Rules
Reading the YouTube rules, it’s ok to create and post content that violates some of its advertiser-friendly guidelines, but not make money from it.
And don’t even think about trying to argue that YouTube is violating your First Amendment right to free speech. It’s their site so they make the rules. They’re not stopping you from creating and publishing content on your own forum, just setting the rules for their platform.
Compare this to a shopping mall. They control who can sell wares and what behavior is appropriate. If you break the rules – by screaming or walking a body bag through the food court (not that I’ve done that) – you can be asked to leave or even banned for a period of time. Likewise, if you scream obscenities on the street, the police might be called and you could get a ticket for disturbing the peace.
So, What’s Changed?
It appears that not much has changed on YouTube. The policy regarding advertiser-friendly content hasn’t changed, but rather how it’s enforced. Before, if a video violated this rule, they would merely turn off the monetization feature, and you may not notice the difference unless you checked your Video Manager. Now, YouTube is sending an email notice when they turn off monetization.
I went back and reviewed the law firm’s YouTube channel. I run ads on most videos, but I haven’t made a cent from YouTube. There’s only one video on which monetization was turned off. My other videos where I may occasionally swear and/or mention sexual content like “revenge porn” are still monetized. (Not that I expect to make money from my videos, but you never know.)
If you have an internet-based business that relies on another platform to make money, be sure you read the site’s terms of service before you design your business model around it. (Remember, there’s a good chance the site can change the rules at any time.) If you want to talk more about internet or social media law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Don’t Blow Up Your Master Plan | “Explosion” by Charles Dyer from Flickr (Creative Commons License)
When I was on one of the weekly calls with my mastermind group last week, one of my fellow Shankminders asked me to comment on a phenomenon amongst entrepreneurs – working on your side gig while at your full-time job.
Wait . . . what?! There are people out there sitting at their desks, and while they are supposed to be working for their employer, they are working on their side hustle? I was incredulous, but the members of my group knowingly nodded their heads.
I thought my head was going to explode. How can anyone think this is ok?
Am I the only person who read in their employment contract? What are you supposed to do on the first day of work besides read the company handbook? Even before I went to law school, I remember signing off on company policies that said employees couldn’t use company time or company resources to run a side business. At the time (2005ish), I assumed this policy primarily applied to people who might be realtors or the like on the weekend, but now I see how this applies to anyone who has a side business – including bloggers and other social influencers.
The notion that people are running their side gig during regular work hours raises a lot of red flags for me.
If you are an at-will employee, you can be fired for any reason, or no reason at all. Working on a side project when you’re supposed to be doing your work tasks seems like a good reason to fire you, especially if you’re neglecting your work duties to do it.
Employers can easily track what employees are doing at work with technology like keystroke trackers. You may be telling your employer a lot more than what websites you’re visiting – like passwords and your company’s trade secrets.
Your contract may have a provision that says anything you create during company time or using company resources is owned by your employer. If your contract has this provision, you may unwittingly forfeit your business to your employer, without any options for recourse.
Some employees have a provision in their contract that says that anything they create during the ten-year of their employment that is related to the work of their employer, is owned by the employer. This could apply to projects done even outside the office.
In general, I am an advocate of employer’s staying out to of employees’ business – personal or otherwise – and that comes with the obligation that employees keep non-work issues out of the office. I understand why it makes sense for someone to occasionally check social media at work, or like during their lunch break. And unless there is a security reason to prohibit it, employees should be allowed to have their phones at their desks to take phone calls or respond to text messages related to their families, permitted it doesn’t interfere with doing their jobs.
But work on a side gig while at the office? No no no. (At least, not without permission.) There are too many risks, the least of which is losing the job which is paying your bills while you’re getting your side hustle off the ground.
If you don’t know what the rules are at your office, go back and read them. Ignorance of the company rules, particularly the ones you signed off on, will not save you from discipline or worse. If you need help understanding how to work on your side gig while at your current employment, talk to a business attorney her knee or a resource that helps entrepreneurs in your community. If you want to see me pontificates more about this and related topics, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Cut out and collect! by Rob Brewer from Flickr (Creative Commons License)
Part of my job as a lawyer is writing and reviewing contract. I love writing contracts – you put in creative and crazy clauses as long as they’re legal. I get many clients who draft their own agreements or get a contract from a peer or template website (shudder) and ask me to review it.
Most clients do an adequate job getting the basics terms into the document – offer, acceptance, and consideration – but where they falter is boilerplate legalese that every contract should have. (I swear we don’t put this stuff in there just to make it look fancy. It serves valuable purposes.) One of the most important provisions people who draft their own contracts forget is severability.
A severability clause saves a contract in the event that one of the provisions is invalid or illegal. It lets the party (or the court) cut out the invalid provision and allow the remaining terms stand as the contract. Here’s a simple severability clause I’ve used in other contracts:
If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of this Agreement shall continue in full force and effect. If a provision is found to be invalid, the Parties hereby request that the intention of the invalid provision be upheld wherever possible.
So what happens if your contract doesn’t have a severability clause?
If all the terms of your agreement are legal and valid, nothing. You don’t need a severability clause to save it.
If you don’t have a severability clause and you have a term in the agreement that’s invalid, it could invalidate the entire contract. (Yeah, that’s bad.)
So if you’re in a situation where you have written contract with someone, and you think they’ve violated it, you could sue them for breach of contract (assuming the contract allows for this). If the alleged breacher shows the court that there’s an invalid provision in the contract and no severability clause, the court could declare that the entire contract invalid. If that happens, there’s no written contract between you, which means there might not be a legally-binding agreement. If that’s the case, there can’t be a breach – and you just lost your case.
Severability clauses are short provisions that can have a big impact in a contract dispute. It’s one of the provisions I include whenever I draft a contract and one of the first provisions I look for when reviewing an agreement for a client, especially if there’s a suspected breach.
I always caution people who look to friends, colleagues, or the internet for free contract templates or who draft their own documents. At the very least have a lawyer review your agreement before you start using a document to make sure it addresses your needs and protects your interests.
If you need help with a contract or are looking for more information about contracts, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Sad Face by wlodi from Flickr (Creative Commons License)
I’m not going to sugarcoat it: The law doesn’t give a fuck about your feelings.
I get a lot of phone calls and emails from people who are sad, angry, afraid, or filled with regret and they ask me if there are any legal options for their problems. The law doesn’t provide recourse when you’re sad. The law provides recourse when your rights have been violated.
And don’t assume that just because your feelings are hurt that your rights must have been violated. With most people I talk to, that’s not the case.
The law doesn’t care about your feelings. It cares about your rights – and only when you can actually prove it.
Before I went to law school, I worked in the mental health industry for nine years. Believe it or not, I was a Licensed Professional Counselor. I talked to people about their feelings for a living. (And there’s a reason I don’t do it anymore – I’d rather be more hands-on in the problem-solving process.) I probably get just as many calls from people who want to talk about their feelings now as I did back then. A lot of people call lawyers when they should be calling therapists. They’re looking for a magical answer to make things the way they wish they could be. I’m sorry, but most of the time, the law doesn’t do this.
In general, the law is a bad course of action to resolve a non-criminal problem. It should be the option last resort because the process could easily take months or years during which you will spend thousands of dollars in legal fees. Even if you win – and there’s no guarantee – you may never collect. It’s a long process, filled with stress and heartache – no matter which side you’re on.
If you think you have a legal problem should you consult a lawyer? Yes. But don’t be surprised if lawyer tells you that there isn’t a legal solution to your problem.
In my perfect world, people would consult a lawyer before problems happen. Many times when I consult with clients, I’m providing as much information about business strategies and considering the gestalt of a situation, not just giving legal advice. It’s much easier (and cheaper) to prevent and prepare for problems than untangle legal knots and clean up avoidable messes.
If there’s a topic you want me to pontificate on, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
The Trees are Laughing at Us by daspunkt from Flickr (Creative Commons License)
Getty Images is known for sending letters to people suspected of using their images without purchasing a license. These demand letters essentially say, “By using our image, you’ve agreed to pay for a license. Pay $XXX by this date or we will sue you.”
They may have started the trend of other photographers sending similar demand letters when people use their images without permission. (I’ve sent these type of letters and counseled clients who have received them – usually from pulling images from a Google Image search without verifying that they had permission to use it.)
Getty sent such a letter to documentary photographer Carol Highsmith, claiming that she was violating their terms for using an image. Here’s the catch – it was a photograph that Highsmith took herself and previously shared with the Library of Congress to allow free use of her work by the general public. Highsmith has shared tens of thousands of images with the public through the Library of Congress since 1988.
Highsmith learned that Getty is claiming copyright rights to thousands of her images work and demanding payment for licenses, often without attribution to her, and adding “false watermarks” to the images. She filed a $1,000,000,000 (that’s $1B with a “B”) copyright infringement lawsuit against these agencies for the “gross misuse” of 18,755 of her photographs.
That’s a lot of photographs.
I hope they have good insurance.
But $1B?! Really?!
Actually, yes. In this case, suing for $1B makes perfect sense.
A party who adds or removes a watermark from a photo to avoid detection for copyright infringement can be fined up to $25,000 per image in addition to other financial damages for copyright infringement.
$25,000/image x 18,755 images = $468,875,000
And if a party is found to have violated this law in the last three years – which Getty has – the complaining party can ask for triple the damages.
$468,875,000 x 3 = $1,406,625,000
Looking at this, it’s easy to see how easy it is for Highsmith to reasonably request over $1B in damages. She’s also requested a permanent injunction to prohibit future use of images by Getty and the other Defendants and attorneys’ fees.
This could be a fun case to watch. If this case doesn’t go to trial (and most cases don’t), I hope the settlement isn’t kept completely secret behind a non-disclosure agreement. One of the recommendations I make to anyone who is a professional creative is determine in advance how you want to respond when your work is used without your permission and plan accordingly. For many people, it’s not if their work is stolen, but when.
There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
EDIT: The previous version of this post stated that Highsmith released her work to public domain. My apologies. Highsmith retains the copyright in her work, but allows others to freely use it through the Library of Congress.
What Are You Looking At by nolifebeforecoffee from Flickr (Creative Commons License)
I regularly receive emails from people asking questions about the legalities related to intimate photos and videos – particularly situations when a third party has possession of them. Sometimes the third party allegedly obtained them nefariously and sometimes the people emailing me voluntarily sent the person photos or video and now they have concerns about what said person will do with them.
Now they have concerns?! These are questions they should have asked themselves before they sent the photos/video to begin with!
Here’s an example of how these conversations typically go. The text in italics are things I usually think, but don’t share with the other the person in the moment.
Prospective Client (PC): I made a video with my boyfriend and his ex got a hold of it. His ex is threatening to send it to my parents and post it. What can I do about this?
How did his ex get access to your sex video? This sounds like someone neither of you should have contact with.
ME: How old are you?
Please don’t be a child . . . please don’t be a child . . . please don’t be a child . . . (Yes, sometimes it’s a minor – or so they say.)
PC: 24.
ME: Thank goodness this isn’t a potential inadvertent kiddie porn situation.
You’re an adult. Besides being embarrassing, who cares if this person shows the video to your parents? (I’ve also had people email me claiming the third party is threatening to send it to the PC’s employer.)
PC: I don’t know what to do. I want to go to the police but I don’t know if I can do that.
ME: Of course you can go to the police! Give them a call, explain your situation, and ask if there’s anything they can do to help you. They may be the best ones to know if this situation violates your State’s criminal law.
And maybe some local resources too that help people in these types of situations.
I get questions and hits on my site every day from people asking about intimate photos and videos, not all of which were taken with consent, and how to keep them from getting out. Unfortunately, I also get hits from people who want to post revenge porn without repercussions – which is disgusting.
When in doubt – don’t. Don’t create intimate photos or videos, don’t share them with others, and don’t post them online. What seemed like a good idea in the moment, may create long lasting regret, especially if it shows up when someone Googles your name. However, if you choose to create this type of material, do it with your device, keep it under password, and never let the files out of your control. Once this material is released, it’s hard to get it back or verify that every copy has been destroyed.
We’re still in the infancy of how we’re going to deal with intimate photos and videos from a social and legal perspective. If you want to chat with me about revenge porn, privacy, or any related topics, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here. If you think you’re the victim of revenge porn or threatened revenge porn, contact your local law enforcement agency.
11/6/2015 – Taurid Meteor Shower – Joshua Tree , CA by Channone Arif from Flickr (Creative Commons License)
In light of the recent lawsuit between CBS and Paramount Pictures and a Star Trek fan film creator, CBS and Paramount released guidelines regarding fan-created films.
Previously, fan fiction movies were limited to camcorders and sets people created in their backyards, but now with computer animation and other technology, a fan could create an impressive work of fan fiction. You can see some earlier Trek fan fiction on the documentary Trekkies.
A friend asked me to weigh in on these guidelines. As a die-hard Star Trek fan, my legal interpretation may be slightly biased in favor of promoting fandom. Below are the guidelines in full with my comments in italics:
CBS and Paramount Pictures are big believers in reasonable fan fiction and fan creativity (I’m glad you support fan art/fiction. Star Trek is known for inviting fan-submitted scripts, but what do you mean by “reasonable?”), and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines. (It’s nice when people tell you how not to get sued.)
Guidelines for Avoiding Objections:
1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes. Is this because you don’t want fan fiction to compete with the TV series and movies? I wonder if someone is less likely to make significant money from a one-off video vs. a series. I wonder if the copyright holder would have objected if Melissa Hunter only made one Adult Wednesday Addams video instead of two seasons.)
2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production. (This makes sense from a trademark perspective. With brands creating content in various genres, it’s important to avoid confusing viewers about what is/is not made by the brand vs fans.)
3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing. (This makes sense because of copyright. It’s ok to copy ideas, but not the original work itself. This may be overstepping a little bit depending on how they define “recreations.”)
In my Starfleet uniform and Trill Make-up, 2000
4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products. (I understand that they want to promote their partners and don’t want fans being misled. However, it makes more sense to require disclosure of sources of props and costumes. Some fans prefer to have a tailor custom-make uniforms instead of buying them from commercial sources. And thank you for calling them uniforms, not costumes – as a fan and Starfleet officer myself, I appreciate that.)
5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees. (What?! This seems overreaching and overly broad, especially considering that non-compete agreements are not permitted in California. Past and current employees can have non-disclosure agreements that limit their participation in other projects. Even a hobbyist has to pay for certain things – like a musician paying for studio time.)
6. The fan production must be non-commercial (This makes sense. Many artists approve of fan art as long as the person isn’t selling their work.):
CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease. (Thank you for understanding that hobbyists have expenses – despite your contradictory term above.)
The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue. (Ok – so you can’t submit your video to film festivals or run ads on it if you post on YouTube.)
The fan production cannot be distributed in a physical format such as DVD or Blu-ray. (This makes sense given current technology. They want to protect their intellectual property.)
The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production. (Fair enough.)
No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising. (This makes sense in terms of protecting their intellectual property, and also makes it more challenging to use fundraising sites.)
The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes. (Agreed. This makes sense.)
7. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy. (I understand no porn, but no illegal activities? What are the bad guys supposed to do? Even Star Trek episodes and films depictions of tobacco and alcohol and the films contain the occasional swear word.)
8. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:
“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.” (This makes sense, but the last sentence suggests that CBS and Paramount may be able to use fan-created content without obtaining the creators’ permission.)
Hanging with the Klingons, Grand Slam Star Trek Convention, 2001
9. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law. (What about the fans’ rights to protect their original works of authorship and their brands that don’t infringe on CBS or Paramount’s rights?)
10. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures. (Agreed.)
CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines. (This makes sense as long as CBS and Paramount don’t change the rules and go after a fan film creator who reasonably complied with the guidelines as written at that time.)
I appreciate that CBS and Paramount Pictures’ desire to protect their intellectual property and that put out guidelines to further this goal, but I wish they would be more fan-friendly. Hopefully this is only an over-zealous reaction to the recent lawsuit and not a sign of future legal battles between Star Trek and their fans.
Last month, Rosie and I attended BlogPaws – a conference for pet bloggers – where I taught a workshop with Chloe DiVita and Tom Collins on the Legal Dos and Don’ts of Blogging and Social Media. We did a three-hour presentation that focused on copyright and the federal rules that apply to product reviews, campaigns, and promotions.
We reminded the audience that the Federal Trade Commission (FTC) requires people to provide their honest and accurate opinions when writing product reviews. If you have a relationship with a company – whether you got free product, you have a contract with them, or even if you have personal relationship with someone in the company, you always have to disclose these relationships – clearly and succinctly – in every post and platform you mention them. We also reviewed the Lord & Taylor fiasco. This was a good reminder for social media influencers not to assume the companies they work with will know these rules or provide proper guidance
After the workshop, I did one-on-one sessions with attendees. Per the conference organizers, each person only got 10-minutes, so it was like a legal information kissing booth – sit down, ask one question, and get out. One attendee asked, “I understand that I have to put #ad on all Instagram posts when I have a relationship with a company, but are there rules about where I have to put it?”
Hmm . . . that’s an interesting question, and one I’ve never heard before.
Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)
The purpose of the FTC rules is transparency. The law requires posters to inform others of potential bias due to a relationship with company so whomever reads the post can consider this in conjunction with the content of the post. This disclosure must be clear and conspicuous, you can’t put it behind a link. The easiest way to make this disclosure is to include “#ad” on each applicable post.
I grabbed my phone and scrolled through my Instagram feed. Each post cuts off after the first three lines until you click on it to read more. Based on this, it appears the prudent place to put “#ad” on an Instagram post is to put it in the first three lines so anyone looking at their feed on their will know when you have a relationship with a company.
After the conference, I looked at Instagram’s Terms of Use. Although their terms are impressive and thorough, there are currently no provisions explicitly about when and where to use “#ad.”
The law is constantly trying to keep up with technology, including the internet. If you’re a social media influencer, keep up with changes in the FTC rules regarding disclosures on product reviews and promotions. and other rules that apply to your posts. If you have questions about internet law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Photo Courtesy of Fate Brewing Company (Scottsdale, AZ)
Earlier this month, Fate Brewing Company announced that they were changing their name to McFate Brewing Company.
Wait…what?! Is this awesome local brewery turning itself into some type of fast food brewery?
No, but they ran into a legal snag that forced the name change.
In 2012, Fate Brewing Company opened in Arizona. In 2013, someone else opened Fate Brewing Company in Boulder, Colorado. In legalese, the Fate Arizona is called the “senior user” of the name since they opened first and the Fate Colorado is the “junior user.” Despite being the junior user, Fate Colorado sued Fate Arizona for trademark infringement.
How Is This Allowed?
Easy: Fate Colorado registered the trademark “Fate Brewing Company” with the U.S. Patent and Trademark Office (USPTO). It’s the Burger King situation all over again.
By doing business first, Fate Arizona had rights to use “Fate Brewing Company” for beer and restaurant services, but since they didn’t register their trademark with the USPTO, their rights only extended to the geographic area where they did business. When Fate Colorado got their registered trademark, they obtained the exclusive right to use “Fate Brewing Company” for beer and restaurant services everywhere in the U.S. except where Fate Arizona had an established market. Likewise, Fate Arizona couldn’t expand its market beyond its established boundaries without infringing Fate Colorado’s rights.
I suspect Fate Colorado sued Fate Arizona for trademark infringement in part because their trademark was granted in 2013 and Fate Arizona South opened in 2015. Fate Colorado could have interpreted the new location as a market expansion that violated their trademark rights.
New Logo for McFate Brewing Company, Photo courtesy of Fate Brewing Company
What’s Next for Fate Arizona?
Even though Fate Arizona could have made a legal argument that they had the right to use the name as the “senior user,” they have opted to take the high road to rebrand rather than spend hundreds of hours and thousands of dollars on this legal fight. The re-branding party for McFate Brewing Company (named after the owner, Steve McFate) is scheduled for June 25, 2016 according to Fate Arizona’s Facebook page.
I hope Fate Colorado wasn’t a jerk about this process. A company has an obligation to protect its intellectual property or risk losing it, but there is more than one way to pen a cease and desist letter.
How Could Fate Arizona have Avoided This Problem?
Yes. Fate Arizona could have beaten Fate Colorado to the USPTO and filed a trademark application before they did. They could have staked their claim to the name and gained exclusive right to use the name nationwide, shutting down Fate Colorado or forcing them to rebrand from their start.
Many new businesses are more concerned about getting off the ground than federal trademark filings, especially when the business only has aspirations of being a local brand. Unfortunately, this leaves them vulnerable to being boxed in geographically, called into court, or forced to rebrand like it did here.
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