by eclewis | Nov 12, 2009 | Business News, IP Law
Who owns the intellectual property that is put on social networks? Unfortunately, it isn’t as easy as saying that the person who created the IP owns it. Two things come into play. First, before the IP is put onto the social network, the owner of the IP must be determined. Second, once the IP is placed onto a social network, it must be determined if the site has any rights to the IP.
So who owns the IP to begin with? Many people think because they create something, they own it. For instance, a graphic artist may think because he created a logo that he owns the logo. However, he may not. There may be a clause in the contract he has with his client giving ownership to his client. It could also be that the work would be considered a work for hire, again, with the client owning it if the contract doesn’t specify. However, it could also be the graphic artist owns it if the contract states so or if the work does not fall under the work for hire doctrine. In addition, there is also a question if the person that originally owns it has given any rights to the IP to someone else. For instance, in the case of an author, did the author give a publisher the rights to the book in return for publishing it? It is only once one establishes who owns the IP prior to someone placing it on a social network that someone can start to establish who has rights to it after it is placed on the site.
So how does one go about figuring out who has rights to the IP after it is placed on a social network? The answer usually lies in the website’s terms of service. To determine if the owner of the IP has given any rights in the IP to the social media site just by placing it on the site, a careful reading of the site’s TOS both at the time it was placed on there and any updates or changes in the TOS since then is necessary. By just placing IP on some websites, users give a license to the website to use their IP for various things and for various amounts of time. A TOS may say that a user gives a limited use in the IP to the site. For instance, the TOS may say the site can use the IP in any way it wants why the IP is on the site, including in advertisements. A TOS may also give an unlimited use license in the IP once it is placed on the site. This would mean that the site could use it for any reason even after the user removes it.
So the short answer is to who owns the IP on a social network is, as lawyers like to say, it depends. To figure out who owns it, it is important to find out who owned the IP first and then to look at what the TOS states.
by eclewis | Nov 11, 2009 | Business News, IP Law
Next week, I will be speaking at the November Mile High Social Media Club’s monthly event. I will be joined by attorney Kristin Diamond and internet photographer Jerome Shaw and the panel will be discussing intellectual property laws, business laws, and social media policies.
As a preview, the next few days I am going to highlight my views on some of the issues that may (or may not depending on the audience) be discussed.
Tomorrow’s post will go over the basics of what are the IP ownership issues if individuals put info out on social networks.
Saturday’s post will go over how do individuals protect their IP from misappropriation by others (namely from theft on other sites).
Monday’s post will go over what policies and procedures should be in place to protect IP.
After reading and/or listening to these posts, I invite you to come and listen to the presentation November 19th at Strings in Denver. You can RSVP for the event at http://novembermhsmc.eventbrite.com.
If you are unable to attend, Friday I will be posting a short summary of how the night went.
by eclewis | Oct 19, 2009 | IP Law, Online/Social Media Law
Several clients have asked me two related questions over the past few weeks so figured it was a sign that a blog post was in order. The first question is what is the advantage of registering a copyright on my intellectual property. The second question is that advantage worth the cost of registering for a copyright.
First, let me preface this post with several caveats. First, as always, this post isn’t legal advice. Each situation is different. I don’t know your situation, and can’t know yours, unless you call me and we talk. Therefore, take everything I say with a grain of salt and use it to enlighten yourself. Don’t rely on it. Come see me (or an attorney of your choosing) for concrete advice. Second, a lot of what I am saying in here is as a writer of the “Legal Solutions for Small Business” blog and a frequent poster of intellectual property online. It is not as an attorney; it is what I have, and have seen, are the best practices. Best practices are just that, best for some, but terrible for others. Again, call me or email me (or an attorney of your choosing) to see if the best practices are good for you.
So with that said, what is the answer to what is the advantage? The advantage is in what damages you can claim if you have to sue someone over copyright infringement. Without registering your copyright, typically you can only get actual damages – the damages that you actually suffered and can prove. This may include lost revenue and reputational damage. It may also include any money that the person that infringed on your copyright made. When you register, you may be eligible for additional statutory damages – damages that are given to you by law and that you don’t have to prove. You may also become eligible to receive attorney fees and other benefits.
So is it worth it to register? This question needs to be answered on a case-by-case basis. Personally, I don’t register the pictures that I put on Facebook from my vacation, quick things that I write here and there, or information that is extremely general in nature (i.e. a post on a community forum). However, blog posts, articles, websites, and pictures that are more professional in nature may need copyrights to ensure that if someone does commit copyright infringement, you have a greater leg to stand on if you have to get into a dispute about copyright infringement. Some people are much more caution than I am, though, and register everything. It really depends on your personal situation and the advice that you receive from your attorney.
by eclewis | Aug 26, 2009 | IP Law, Online/Social Media Law
Another Twitter Lawsuit
Several weeks ago, I talked to people about the Chicago Twitter defamation case. Monday, another case regarding defamation surfaced. This time, it involved celebrity Courtney Love and a dispute with a designer. The designer accuses Courtney Love of using twitter and her website to defame her. Among the accusations are that Courtney Love used these mediums to allege she was a drug addict, a prostitute, and some other words that I don’t want to publish on my blog.
According to the San Francisco Chronicle, Courtney Love’s attorney has stated “It is important that this cherished right not be marginalized when speech is communicated via the Internet. Ms. Cobain (Love) enjoys using Twitter and expressing her views … to her fans and those who are interested in following what she has to say.”
Although most of my readers (I think) aren’t famous, the question still arises – what is safe and what isn’t safe to say on my blog or website. Unfortunately, this really depends on who you are and what you do. For instance, if I was an advising an accountant, I would say that you need to be careful about what tax advice you give (along with thousands of other things). I would advise a teenager to be careful about posting explicit information or pictures about another teen (in addition to a thousand other things). For pretty much everyone, I would say to be careful posting anything untrue about anyone or something that you wouldn’t want said about yourself.
Just like with any other media, if you say something that is an outright lie (i.e. Elizabeth Lewis is a terrible artist, because, come on guys, I can actually draw, paint, and take photographs!), you can face defamation charges. So, for instance, if in the case described above, the person isn’t actually a drug user or prostitute but the information was posted to cause people to stop using her, there could be a problem. However, on the other hand, if the person is a drug addict and prostitute, it would be hard to argue defamation.
In order to make sure either you, or your company, is safe from law suits, it is always good to have someone familiar with online law to review what you are posting online. For instance, I review companies’ communication policies to ensure that anything said online or offline about the company or its clients isn’t going to cause the company problems. I also review companies’ websites and literature to ensure it is okay to print. So whether it is in print or online, if you are going to be printing something, make sure you are in compliance with defamation, advertising, and any other laws that may apply!
by eclewis | Aug 18, 2009 | IP Law, Online/Social Media Law
There are more than 4 million Twitter accounts and more than 30 million Facebook accounts. Social media sites, such as Facebook, Twitter, MySpace and LinkedIn, are no longer just a place for kids to post pictures and share the latest gossip with their friends. Adults are beginning to use the sites for everything from planning high school reunions to marketing their businesses. Even companies like Comcast are getting in on the action by having employees respond to user complaints on Twitter. However, as the use of social media sites increases, so does the need for people to understand the legal issues that can arise from their use. The following are just a few of the ways you can get into trouble when venturing online.
Personal Safety
The first way you can get into trouble online is by endangering your physical safety. In California, “buyers” held up a couple selling sweatshirts through a Craigslist ad. The transaction was to take place in a semi-deserted parking lot; instead, the “buyers” took the couple’s merchandise and their cash. The moral of the story: if at all possible, meet the other party at a public place if using a site to buy or sell merchandise on Craigslist and always be aware of your surroundings.
Job Seekers Beware
The second way you can get in trouble online is by hurting your employment chances. Just as individuals are getting more familiar with online sites, so are employers. By posting information online, a jobseeker may be asking to not be hired. At the age of 20, it may seem fun to post pictures of yourself in a compromised position at Mardi Gras or your best friend’s bachelorette party. At 26, when applying for a job, a prospective employer may not find those pictures so amusing. The moral of the story: companies will judge you by what you have posted online, whether it is your stellar grades or pictures of you at an all-night kegger.
Truth or Fiction?
The third way you can get in trouble online is by good old-fashioned lying. In late July, the media first reported a widely publicized case about a person suing a Twitter user over a post (or “tweet”). In Chicago, a renter complained via the service that her apartment was moldy; the landlord filed suit for damages claiming the tweet was defamatory. (It remains to be seen whether the apartment was moldy or whether the tweet was a lie, and thus defamatory, as the case has not gone to court yet.) The moral of the story: if you are posting bad things about a company or person, make sure they are true.
Social networking is fun and exciting. Its use can improve your life, increase the number of friends you have, and bring you more business if used correctly. It can also lead to problems far into the future. Be smart about what you post and if you have any questions about a post: don’t do it until you check with someone familiar with online law!
by eclewis | Jun 21, 2009 | IP Law, Online/Social Media Law
I usually try not to bring my own personal opinion on issues to this blog.
However, I recently saw this picture that made me rethink this policy. For those that don’t click on the link, the picture is titled “The cost of piracy.” It isn’t talking about Somalia, but is rather talking about copyright piracy. In the same week that Air France stated it would give the family members of each victim of the recent crash $24,000.00, a court in Minnesota decided to punish a mother it found to be committing copyright infringement $80,000.00 per downloaded song. In other words – one human life = $24,000.00; a copy of a song = $80,000.00.
Now I am all for copyright policies. However, it is time to make sure that copyright is given its proper place in society. The Founding Fathers determined that copyright should be for a limited time. Maybe I don’t know what I am talking about, but considering the chances of me being alive when the copyright expires on Britney Spears’ new album are slim to none, I don’t think that our current policy is anything close to “a limited time”.
People deserve to profit from what they create. However, if copyright exists on a work 70 years AFTER the death of the author of the work, it stifles creativity. One only need to look at works being created on the internet to see that thousands of works have been or could be created which enhance our ideas about humanity, morality, politics, art, and thousands of other areas. Some are as simple as a child dancing to a song in the background (for which under our current law, copyright infringement was alleged) to something like a book adding zombies to Pride and Prejudice (a book which was no longer protected under copyright law).
Copyright policy must weigh the interest of the author and the interest of creativity of the rest of society. It must give authors a way to profit and society a way to incorporate the ideas of those around them during their lifetime.
