At a recent South by Southwest Interactive Festival panel, intellectual property experts Chip Stewart, a Texas Christian University professor; Kathleen Olson, a Lehigh University professor; Victoria Ekstrand, a professor at Bowling Green State University; and Riyad Omar, general counsel of NewsRight, delved into the intersection of IP law and social media. They explained three pitfalls that social media professionals should be careful of and offered some tips to avoid 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, 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. While several media outlets purchased the photos from him, 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, since their brevity, their focus on facts and ideas rather than expression, and lack of unique creativity fail to satisfy copyright requirements. But photos almost always satisfy those tests. The mere fact that Morel posted the pictures on Twitter does not amount to a waiver of copyright; moreover, AFP cannot rely on Twitter’s terms of service with its customer Morel to defeat his rights in 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, and 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 where AP sued another news service, INS, because it was stealing its content right out of AP stories. The Supreme Court found that while there is no copyright per se in “news,” it granted a brief, limited right to the AP because it researched, broke and reported compelling news stories. Some commentators had wondered whether the Hot News Doctrine could survive in an era of lightning fast news cycles and reporting by 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 they merely scrape other people’s information and content off the Web, or whether they engage 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 unique 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. While such obvious parodies are probably still safe, plaintiffs are no longer limited to stalking and harassment laws when they believe detractors have gone to 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 Web site 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. While 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 their trademarked logos and marks and try to avoid using them or at least transforming them so that you can argue that there is no consumer confusion, an element necessary under trademark law.
This post is by Stephen J. Easley, vice president for government affairs and general counsel of Heartland Networks, a wireless-infrastructure company, and an entertainment attorney representing clients such as the estate of Buddy Holly on intellectual property issues. He is attending his 26th SXSW conference.