Jamie PingorMay 15, 2020 

At a time when social distancing is mandated, gatherings are banned and connecting with loved ones in person is discouraged, people are increasingly looking to bridge the gap in human interaction by using social media. They are producing a wide range of content from music videos to creatively composed posts and memes. However, content creators and social media users need to keep in mind the many legal issues that can arise from content production and/or unauthorized reproduction. For example, legal issues sometimes overlooked include intellectual property, publicity rights, commercial speech, and contractual terms of service.

Terms of Service and Copyright Law

Content creators should avoid playing someone else’s music or video within their creation unless they plan on also acquiring/purchasing a license to use the music/video online. Platforms such as YouTube can block or remove content if it suspects the creator has used too much of someone else’s material. Alternately, if you, as a content creator are incorporating another’s content, it’s always a good idea to give proper credit to the author of the content.

For example, retweeting a friend’s Twitter® post is within the scope of Twitter’s Terms of Service. The copyright owner agreed to retweets when joining the platform. However, copying someone else’s content and posting it to Instagram® without the copyright owner’s permission is most likely not protected by Twitter’s Terms of Service. If one wants to share someone’s content, a safer bet is to provide a direct hyperlink to the platform or even better, get permission from the original author.

When sharing a digital creator’s content, avoid removing their credits. The Digital Millennium Copyright Act (“DMCA”) prohibits the intentional removal of any “copyright management information” without approval from the copyright owner. This may include the name of the author and the author’s online “handle.”

Lastly, consider registering popular content with the U.S. Copyright Office that you, as a content creator, think copycats may attempt to publish or use without your permission. This registration, which should occur in the first three months from publication, will help down the line if deciding whether to sue someone for copyright infringement. If properly registered and infringement is proven, the copyright owner is then entitled to recover royalty fees or other monetary damages.

False Advertising

Avoid false advertising and misleading an online audience via marketing. Doing so can result in a fine by the Federal Trade Commission (FTC), which is in charge of regulating commercial speech and protecting consumers. Always disclose endorsements or materials received for free in exchange for a review.

Furthermore, choose words carefully when making statements online about celebrities and other individuals that appear as fact rather than opinion.

Trademark Law

Avoid featuring third-party trademarks in the form of words, symbols or designs unless the third-party has given you, as the content creator, permission. The trademark owner could sue for trademark infringement. When looking to secure one’s own trademark for online use, consider first doing a search with a professional to avoid any pitfalls by creating an unintended likelihood of confusion with someone else’s mark or brand.

Location

When live streaming or shooting video in public, consider asking for permission first. While many places are considered open to the public, such as grocery stores, they are also privately owned. The business that you, as a content creator, shoot video in may come after you if the business’s branding and trademarks are prominently featured in your content.

Publicity Rights

If you, as a content creator, are featuring another individual in your content, get a signed release expressing that that individual has agreed for you to use their “likeness” in your content. This is particularly important when you’re receiving income from your materials.

Final Takeaways

  • Use common sense and avoid legal mishaps when broadcasting online.
  • Copyright, trademark and publicity rights exist simultaneously. Each of these areas of law should be considered separately when producing content.
  • Be aware of, and don’t ignore, infringement claims. The more views one’s image or video incurs, the more likely another online creator is reproducing and duplicating one’s digital content.
  • As a content creator, as your popularity grows, seek the guidance of professionals to avoid infringement claims, aid in drafting contracts with brands, help create an original trademark or protect yourself from personal liability.

In today’s climate, more companies are investing money into digital branding, which means content creators are in high demand. Therefore, be cautious of the uptick in competition and legal claims that will likely ensue.

Walter | Haverfield is prepared to assist you in navigating these complex issues. If you have additional questions, please reach out to us here.

Jamie Pingor is a partner at Walter | Haverfield and chair of the Intellectual Property team. He can be reached at jpingor@walterhav.com or at 216-928-2984.