Social networking has transformed not only how people spend their time, even idle time waiting in the checkout line at the grocery store, but how people interact with one another and share information and content about themselves and others on social media platforms. Social media consumption, especially via mobile devices that facilitate real-time social networking, is where online users spend their time. A recent study according to Pew indicates that, as of December 2012, 67 percent of online adults interact with social networking platforms like Facebook, Pinterest, Instagram, Vine and Twitter.
The study also indicated that in 2011, 52 percent of Facebook users interacted with the platform daily via updates to their status and comments to another’s status. These users are sharing user-generated content via social media, every day. This UGC injected into social networking platforms consists of text content, photos, videos and audio. It also may include trademarks, copyrights and images owned by not only the user but others as well.
Because of the incredible popularity of social networking platforms among consumers, businesses have followed and engage in great efforts to acquire followers of the business’ social media platforms. Businesses hope to encourage interaction with and among their fans. Businesses naturally want to leverage these social interactions, encourage UGC posts to their platforms and integrate UGC with the business’ brand. Social network users love the organic, casual and instantaneous nature of UGC, and hold the opinion that social networking exchanges should be fun, easygoing and unrestrained. Users — both businesses and consumers alike — tend to share and treat UGC freely and casually, mistakenly assuming that UGC posted into social media is within the public domain and available for any use.
A trademark is any word or symbol that identifies products or services of a particular source from those of others. Trademarks can appear on packaging, labels, vouchers or on the product itself. Trademark owners have the exclusive right to use their marks in connection with their goods or services. A copyright, on the other hand, is any original work of authorship fixed in a tangible medium of expression. Copyright owners are entitled to certain exclusive rights under the United States Copyright Act, including the right to make and distribute copies of the work. A copyright includes photos, articles, images and videos. Privacy is a right all people have to be let alone; that is, the right to be anonymous, unnoticed or unidentified in the public realm if one so chooses.
Under applicable federal and state law, unless a "fair use" exception exists, one cannot use another’s trademarks, copyrights or name, image or likeness without their permission. If permission is not secured prior to use, the user, absent a clear "fair use" defense, may be subject to a claim for trademark or copyright infringement. These claims involve significant penalties, including statutory damages, actual damages and attorney fees. When it comes to the Internet, infringement is easy to find and nearly impossible to erase. Likewise, if a release or permission is not secured before use of another’s name, image or likeness, the user may be subject to a whole host of privacy torts, such as public disclosure of private and embarrassing facts (i.e., the dissemination of truthful private information that a reasonable person finds objectionable), false light (i.e., the publication of facts that place a person in a false light, even though the facts themselves may not be defamatory), intrusion of solitude (i.e., the intrusion into one’s private quarters), or misappropriation (i.e., the use of someone else’s name, likeness or other personal attributes without permission for an exploitative purpose).
Kimberly A. Spotts-Kimmel, a partner in the business services group at Gross McGinley, counsels businesses that maintain an online presence in all legal aspects of Internet law. She also works with a wide range of clients, from small businesses and nonprofits to large corporations, on intellectual property, advertising and media law matters.