With millions of people communicating through social media each day, sites like Facebook®, Twitter®, YouTube® and Tumblr® offer businesses an effective platform for reaching and staying in touch with their customers. In utilizing these platforms, however, it is important for business owners to recognize and respect intellectual property rights of others and to know how to protect their own intellectual property rights.
The two primary forms of intellectual property at issue on social media are (1) trademarks, and (2) copyrights. Strong statutory protection exists for owners of trademarks (the Lanham Act) and copyrights (the Copyright Act), including the ability to obtain statutory damages, attorneys’ fees and injunctive relief for infringement. In general, therefore, it is advisable to refrain from using the trademarks and copyrights of others on social media sites unless prior permission, or a license, has been obtained.
However, in very limited instances of “fair use”, use of another’s trademark or copyright may be allowed. Those circumstances are broadly discussed below for general informational purposes. This is not legal advice. If you have specific legal questions or concerns regarding use of another’s intellectual property or your own intellectual property rights, contact an intellectual property attorney.
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods or services of one party from those of others. Use of another’s trademark, without permission, can result in claims of trademark infringement, unfair competition and/or dilution and can lead to injunctive relief and/or monetary damages.
In very limited circumstances, use of another’s trademark without authorization can be permissible if the use is considered a “fair use”. There are two types of situations that can constitute fair use: (1) descriptive fair use, and (2) nominative fair use. Descriptive fair use permits use of a trademarked term to describe the user’s products or services, rather than as a trademark to identify the source of the goods or services. Descriptive fair use requires that the mark (1) actually describe a person, place or attribute of the goods or services; and (2) is a term used in the normal course of language. Nominative fair use, on the other hand, permits use of another’s trademark to refer to the trademark owner’s actual goods and services, such as in comparative advertising, product references, compatibility assurances, educational articles or news reporting.
The fair use must be in accordance with honest commercial practices, must not suggest association with or sponsorship by the trademark owner, and must not depreciate the value of the goodwill in the mark. A user must avoid ambiguous language or presentation causing consumers to be confused as to the source, identity or sponsorship of the user’s product or services. Some general guidelines for accomplishing this include, but are not limited to: (1) Use as little of the other party’s trademark as possible – i.e., avoid use of their logo or other distinctive design qualities of their mark; (2) Avoid making the other party’s trademark a prominent part of your post, and (3) Always use your own distinctive trademark prominently. As a further precaution, you may also wish to use phrasing clearly stating a lack of association and sponsorship.
In certain circumstances, it may be necessary to use another’s trademark in your social media activities. Keep in mind, however, that although there are certain fair uses of others’ trademarks, it is often difficult to ascertain what uses will be deemed “fair uses” under the law. Accordingly, it is prudent to use great caution when using another’s trademark on social media. If there is any doubt about the lawfulness of said use, consult intellectual property counsel.
A copyright protects an original work of authorship fixed in a tangible form of expression, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. This may include advertising and marketing text and pictures. Copyright protection attaches the moment the work is created, though a copyright registration strengthens the creator’s ability to protect and enforce the copyright. Although facts and ideas are not protected by copyright, an original organization of facts or ideas may be. Copying, display, distribution and/or reproduction of another’s copyright, without permission, can result in a claim of copyright infringement and can lead to injunctive relief and/or monetary damages.
In very limited circumstances, use of another’s copyright without permission can be permissible if the use is considered a “fair use”. In general, use of a copyright for commentary, criticism or parody is a fair use of the copyright. A use is more likely to be deemed “fair use” where the use is not commercial and where the work is factual and not creative.
In certain circumstances it may be necessary to repost or refer to another’s copyrighted work. Keep in mind, however, that although there are certain fair uses of others’ copyrights, it is often difficult to ascertain what uses will be deemed “fair uses” under the law. Accordingly, it is prudent to use caution when using, reposting or referencing another’s copyrighted text, pictures, music or other material on social media. If there is any doubt about the lawfulness of said use, consult intellectual property counsel.
A company’s reputation and goodwill is built on its trademark. Similarly, copyrighted materials are valuable assets to any business. Accordingly, make sure you are not only avoiding use of another’s protected intellectual property but are also protecting your own intellectual property in the social media realm. Your brand name may be entitled to federal trademark registration, and the original text, pictures, music and organization of material you place on social media may be entitled to copyright registration. Additional information about securing statutory trademark and copyright rights can be found at www.uspto.gov and www.copyright.gov. If you have inquiries regarding the nature or scope of your intellectual property rights, contact intellectual property counsel.
If you believe your trademark is being used by another without your permission and in a way likely to cause consumer confusion, action should be taken. Similarly, if your copyrighted material – whether registered or unregistered – is being used by another in a commercial manner, action should be taken. In some instances, you may be able to effectively remove the infringing material by submitting a request directly to the social media site on which infringement is occurring. In other instances, legal action may be necessary. To understand the full spectrum of your rights, consult intellectual property counsel.
DISCLAIMER: This post provides general information related to intellectual property issues in the social media realm. RLI/Lindbergh is not a law firm. This information is not intended as a substitute for, and should not be relied upon as, legal advice. It is provided for general educational and informational purposes only. Although RLI/Lindbergh strives to ensure that its content is accurate, it makes no guarantees. All legal inquiries should be directed to intellectual property counsel in your State or jurisdiction. RLI/Lindbergh is not responsible for any errors or omissions in the content of this post or damages arising from the use of this information under any circumstances.