copyright in social media & digital marketing 2014

COPYRIGHT ISSUES IN DIGITAL & SOCIAL MEDIA

Presented by David M. Adler, Esq.Adler Law Group

www.adler-law.comAdlerlaw.wordpress.com

http://www.adler-law.com/

Copyright Overview

April 11, 2023Adler Law Group | Safeguarding Ideas Relationships & Talent® adler-law.com 2

Source: US Constitution

Protects Creative expression: literary, dramatic, and musical works; pantomimes and dance; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works.

Fixation Protected Immediately (Registration not required) Tangible form includes the electronic medium Most items on the Internet are protectable: the

text of web pages, contents of email and Usenet messages, sound files, graphics, etc.


Copyrights

©

Copyright BasicsWhat is NOT protectable?

Ideas Facts Titles Names Short phrases/Blank forms

“Work Made For Hire?” Either:

prepared by an employee within the scope of his or her employment, or

a work specially ordered or commissioned by express written agreement

The employer is the author of a work made for hire.


Copyright BasicsEXCLUSIVE RIGHTS GRANTED:

1. Reproduce phonorecords;

2. Prepare derivative works;

3. Distribute by sale rental, lease, or lending;

4. Publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

5. Publicly display literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; and

6. Publicly perform sound recordings, by digital audio transmission.


Copyright BasicsWHY REGISTER?

Necessary for enforcement.

Claim Statutory damages (no need to prove Actual Damages)

ENFORCEMENT

INFRINGEMENT (When your stuff is used without your permission)

DMCA – Take Down notices

PLATFORM-SPECIFIC RULES


Copyright in Social Media Photographs

Authorship? (Who owns the photo?) People in the background (Get waivers?) Trademarks in the background? (Get release?)

Text & links Attribution

Is it OK to post: On Twitter / Facebook / LinkedIn / Instagram

/Pinterest?


STOP!

Fair Use DEFENSE to a claim of Copyright Infringement

HIGHLY fact and circumstances specific

Four Factors (17 U.S.C. § 107)

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.


Ownership & Management TipsOne thing I have learned: my clients should have consulted me first!

Identify and document:

• Identify Copyright assets early

• Protect through registration and contracts

• Use “Work-made-for-hire” Language for employees, contractors


#$%&%$#!!

Recent Cases of Note“Monkey” Selfie: Generally one who takes photo owns the copyright. Wikimedia Commons refused photographers Take-Down request

“Oscar” Selfie: Bradley Cooper snapped the photo on behalf of Ellen DeGeneres, Joint-Authorship?

independently copyrightable contribution & artistic control

Intent of the parties to create a joint work.

“White House” Selfie: David Ortiz - Obama Ortiz, took photo with Samsung device; had signed an endorsement deal with Samsung the day admitted to being coached before event.

Legal Issues: authorship, joint ownership, and work-for-hire issues

Contract Issues: waivers, releases, sponsorship and work-for-hire agreements


Thank youDavid M. Adler | Adler Law GroupSafeguarding Ideas, Relationships & Talent ® 300 Saunders Road, Suite 100Riverwoods, Illinois 60015Direct: (866) 734-25682014 Illinois Super Lawyer

David@adler-law,com

www.adler-law.com

Adlerlaw.wordpress.com

@adlerlaw

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