Working with People who Don’t Understand Copyright

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Here’s the scenario: You are a newly hired third party content creator for a company. You learn that your client has a habit of copying pictures from Pinterest or Google Images searches without verifying that they are allowed to use the images on their website and/or social media posts. They want you to do the same. What should you do?

Option #1: Your Client Needs an Education about Copyright
Some people truly believe they can use any image they find on the internet, particularly if they give an attribution and a link back to the original. There are so-called “gurus” who will tell you this is ok. It’s not.

What your client is likely doing is committing copyright infringement. Inform your client that he/she is running the risk of getting a cease and desist letter, a bill with a license, or a lawsuit. In the worst-case scenario, they could face a lawsuit for $150,000 per image they use, plus attorneys’ fees. Tell your client to thank their lucky stars they haven’t faced one of these consequences yet and advise them that the prudent thing to do would be to replace all images on their site with pictures they can legally use.

Use this an a teaching experience to educate your client about the importance of asking permission, using Creative Commons, and possibly exploring whether what they are doing in some situations qualifies as fair use.

Option #2: Your Client Understands but Disregards Others’ Copyright Rights
Fire your client.

This person is obviously an idiot. No money is worth being affiliated with this company. Run away as fast as you can.

Footnote: Every company should have a “No Jerks” rule when it comes to employees and clients. If you find someone violating this rule at a genetic level (not just having a bad day), cut all ties with them immediately.

The same rules about copyright that apply to your website also apply to your social media posts:

Whenever I work on a contract for the relationship between a company and an outside content provider, I always recommend that my client require an indemnity clause that will protect them if they are accused of intellectual property infringement based on material provided by the other party. Your contract is the master document for your working relationship. It should clearly define the parties’ obligations to each other which should include deadlines and deliverables and also how you will resolve problems when they occur.

If you want to know more about the complex issues related to copyright and the internet, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Pictures on your Phone – Who Owns the Copyright?

No Pants 2015 Photo by Devon Christopher Adams, used with permission

No Pants 2015 – Photo by Devon Christopher Adams, used with permission

Here’s the scenario: You’re out to dinner with a group of friends. You ask your server to take a picture of your group with your phone. Your server obliges. The image is on your device; but who owns the copyright – you, the server, or the restaurant?

To get a copyright, you need an original work of authorship that is fixed in a tangible medium. Taking a photograph of a group of people constitutes an original work fixed in a tangible medium, even when it’s just a digital file on your phone. The copyright holder has the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. This person has these rights the moment a work is created – they don’t have to register their work with the U.S. Copyright Office to obtain these rights.

Given this information, who owns the copyright in this situation?

Is it You?
You orchestrated the photo and it’s on your phone. You may be the only one who can physically copy, distribute, and use the photo – at least in regards to the first time it appears away from your device. I can’t say for certain that the law would say you’re the copyright holder since you didn’t physically push the button to create the photo, it’s unlikely that anyone would challenge you for copyright rights.

Is it the Server?
If it wasn’t for the server, this photo as it is wouldn’t exist. From that perspective, the server could argue that he/she owns the copyright since he/she pushed the button that created the image.

Is it the Restaurant?
If your job involves creating intellectual property, your employer is the author and owner of all the intellectual property you create while performing your job tasks. However, a server’s job isn’t to create intellectual property; their job is serving food and providing customer service. The restaurant probably doesn’t have any claim to the copyright in the image.

A restaurant may have policy on their social media profiles or posted in the restaurant that says you grant them a license to use any content you post about them. If you post the image online, they may be able to use the image without asking for additional permission, but they still don’t own the copyright.

So who’s the copyright holder – the server or the person who owns the camera? I’m not sure. I’d have to evaluate the specific facts of the situation. But here’s my question: does it matter? What is the likelihood that there are going to be problems related to this image? Will the server ever see or care if you post the photo? Probably not. And even if they do, I suspect he/she won’t care.

Copyright is a complicated issue, especially when it involves the internet. If you want to chat more about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Protect Yourself from Cyberflashers

Lens Flare by Lee Netherton from Flickr (Creative Commons License)

Lens Flare by Lee Netherton from Flickr (Creative Commons License)

Eww eww eww!

If you or your child has an iPhone, adjust the settings for AirDrop now to avoid being targeted by cyberflashers.

Apparently this is a thing – the default setting for AirDrop allows people in your vicinity to send you photos. It displays a small version of the image with the option to Accept or Decline. So if somebody wants to send you a picture of their junk, even if you Decline, you’ve already seen the image! That’s cyberflashing.

If you have an iPhone, please read this article from Sophos that explains step-by-step how to adjust your AirDrop settings to avoid being cyberflashed.

This is so disturbing. If your AirDrop allows anyone in the vicinity to see you, it lists to as “[First Name’s] iPhone” so the cyberflasher can target people based on their assumed gender. It doesn’t tell you anything about the recipient’s age. Indecent exposure is a crime in Arizona, and it’s a felony if you flash someone who is less than 15 years old.

Eww eww eww! It is absolutely vile and wrong to invade unsuspecting people’s iPhones (including children’s iPhones) and inflict your naked photos on them. I hope Apple realizes how wrong this is and changes the default settings on their phones.

If you want to chat more about privacy and cybersecurity, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Choosing a Business Partner – Bet on the Jockey, not the Horse

Lone Star Park by Travis Isaacs (Creative Commons License)

Lone Star Park by Travis Isaacs (Creative Commons License)

When it comes to deciding who will be your business partner or a business investor, choose your associates with as much care as you would a romantic partner. When it comes to selecting these people, don’t you just look at their reputation, their track record, or their wallet. Look at who they are as a person. Look at how they work in relationships with others, their values, and their personality. If you are going to be intimately involved with this person from a business perspective, it should be someone you enjoy being around and who has values and goals that are compatible with yours.

When Gary Vaynerchuk evaluates startup owners and businesses for investment purposes, he says he bets on the jockey, not the horse. That makes perfect sense because there are times of great ideas out there but a much smaller group of people who can take one of these ideas and execute on it in effectively. As Gary would say, “Ideas are shit. Execution’s the game.

Think of your business relationships as a “business marriage.” These are people with whom you will be legally connected and have fiduciary obligations to each other. And if things don’t work out, you will need to get a “business divorce” where one partner buys the other out or when the partners decide to shut down the business and divide whatever assets are left. I’ve worked on collaborative divorces where the owners realized that they could no longer work together on a business but they could agree on what terms they wanted for their separation. I’ve also worked on contentious business divorces where each side has legal representation and the contract negotiation is longer and the parties are much more antagonistic.

In many cases, many problems in a business relationship or the business divorce could have been avoided had the parties verified that they were on the same page from the beginning of the relationship regarding their goals, how they were to run the business, and how they will resolve problems. Unfortunately, too many people use poorly written contract templates they find on the Internet or proceed without one at all. They don’t understand that it is cheaper and easier to write an effective contract with a lawyer at the big getting of a business relationship then for each side to have to hire someone to negotiate their business break up when things don’t work out.

Choose your jockey (business partner) with care. If they treat other people poorly, they will treat you poorly. If you think you can manage or manipulate a person’s behavior, you are already asking for trouble. If your prospective partner balks at the idea of solidifying your relationship with an operating agreement or investor agreement, turn and run away. No one’s money is rich enough to make up for the headaches and heartbreak that result from not having a proper contract in place. In fact, the appropriate response to a request for a contract should be something along the lines of, “Duh.”

If you want to chat more about the importance of business contracts or how to write one to accommodate your needs, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Entrepreneurship, Business Contracts, & Self-Awareness

Meditation by Moyan Brenn from Flickr (Creative Commons License)

Meditation by Moyan Brenn from Flickr (Creative Commons License)

As a lawyer I am in a problem-solving industry. I much prefer to be on the problem prevention side than having to help my clients clean up the mess they find themselves in, but I try to help when and where I can.

The last few months have been particularly frustrating. I’ve seen multiple situations where problems could have been prevented if the people involved had fully thought the situation through, called a lawyer to help them record their agreement in writing (and had the provisions they didn’t think about in advance), and signed their contract. Let me be clear – I’m not mad at my clients or prospective clients. I give them credit for realizing they are in over their heads and asking for help. The frustrating part is knowing that they are in difficult situations that could have been prevented.

Well written contracts are business gold. They put everyone on the same page from the beginning of the relationship and they outline how the parties will deal with problems when they occur.

I wonder what some people are thinking when they work without a contract or with a poorly written contract.

  • “We were too excited about the project to worry about a contract.”
  • “We were on a deadline.”
  • “I didn’t think we needed a contract.”
  • “The template I found online looked good enough at the time.”
  • “Hiring a lawyer is too expensive.”

All of these are crappy excuses not to have a contract or to have an ineffective one. A responsible entrepreneur is thoughtful enough to know what their needs are including an awareness that they will be dealing with more pain if they have to clean up the mess compared to doing it right the first time. And if the person you’re working with doesn’t understand the value of having a legally sound contract written by someone who knows what they’re doing, I would have serious reservations about working with that person. I thoughtful entrepreneur knows it is a better use of their time and money to hire someone to draft a contract at the beginning of a project than to try to do it themselves and have to hire a lawyer later to clean up the mess they created for themselves.

More entrepreneurs need to hear and to realize, that even though they might be running a solo shop, they never have to deal with a situation alone. They don’t have to have all the answers all the time. It’s ok to ask for help. In fact, it’s a sign that you are a good entrepreneur when you play to your strengths and you let other people use their best skills on your behalf. This requires a high degree of self-awareness and humility.

Gary Vaynerchuk and his team made an awesome video about self-awareness as an entrepreneur. I regularly watch it as part of my journey as a business person.

This is an area where I have substantial interest – both as a lawyer and an entrepreneur. If you want to chat more about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Trademark Registration Workshop for Bloggers

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

I’ve been on my soapbox for a while about the importance of registering your trademark if you have a blog. Even if your following is small, you want to stake a claim to your site’s name because if someone registers your name before you, they can essentially shut down your site. If they register your name as a trademark after you’ve started your site, you don’t have to shut down your site, but you can’t grow you market.

This is not a new problem but it is getting more complicated in the online world. The most infamous trademark story I know in the brick-and-mortar world is about two different Burger King restaurants. The most infamous situation in the blogosphere is the Turner Barr situation:

When I speak at social media and blogging conferences, I encourage everyone who has a blog to register their site’s trademark with the U.S. Patent and Trademark Office (USPTO). (Ditto for vlogs and podcasts.) A lot of people agree that it’s a good idea; however most people don’t follow through and do it.

The #1 reason I hear why most people don’t register their trademark: the cost.

I’m not going to lie. Registering a trademark is expensive. The filing fee alone is at least $225. But what would suck more – paying for a trademark or having to rebrand because someone else registered it – especially if your plans include making money off your site?

I am almost through the process of registering the trademark for my blog, The Undeniable Ruth. It’s got me thinking that I could do small workshops with bloggers (3-5 participants) that includes an overview of trademarks and then I could lead them through the process of filling out the USPTO trademark application during the session, and then shepherd their applications through the rest of the process. Since it would be in a group setting, I could charge half the price of what I’d normally charge to submit an application for a client (only $499 instead of $1,000).

Interested? Please fill out the form below and if there’s enough interest, I’ll schedule a workshop.

 

If you want to know more about the legalities of blogging, please watch my Q&A keynote from TechPhx or check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.  You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Thoughts on the Ashley Madison Hacking

Puzzle by Andreanna Moya Photography from Flickr (Creative Commons License)

Puzzle by Andreanna Moya Photography from Flickr (Creative Commons License)

I have had a lot of different thoughts about the recent hacking of the Ashley Madison website – both as a lawyer and as a person. Ashley Madison is a website geared towards helping people participate in infidelity. They apparently have over 37 million users. According to NPR, the company suspects it was an inside job. Allegedly, whoever did this threatened to release the identity of its users if the company doesn’t take down the website.

As a social media lawyer, I am against hacking. Whenever I work with a company on their website, I always ask what security measures they are taking to protect their users’ information, and I encourage them to explore whether they need cyber liability insurance. Conversely, people need to remember that there is no expectation of privacy in anything they post on the internet, regardless of their privacy settings. There is always a risk that they could be unmasked, which could lead to social, professional, and legal consequences.

Do I believe this hacker deserves to be punished? Yes. If this person has an issue with what this website does, assuming this was perpetrated by an employee, they should quit their job. Being personally morally opposed to a company is not a valid reason to potentially jeopardize millions of people’s lives.

Additionally, I am a huge advocate of everyone leaving each other alone (with a few exceptions related to safety and public policy). Stay out of other people’s relationships that don’t involve you. I have no idea what these 37 million people were doing on Ashley Madison. I suspect some of them were there with the consent of their significant other as part of an open relationship arrangement. Some people may be allowed to cheat as long as they do it discreetly. I wouldn’t be surprised if there are partners where both people have profiles on this site. The only thing I know for sure, is that I don’t care about what these consenting adults do in the privacy of their own lives.

Part of what makes this situation so newsworthy is that it involves infidelity, and it forces us to acknowledge on some level that not everyone believes in or practices monogamy. This isn’t a legal issue; it’s a personal choice. And the only people who deserve a say on these decisions are the other people who are directly impacted (meaning that person’s significant other and possibly children). The fact that outsiders are outraged by these beliefs and activities is irrelevant.

I know this is a hot button topic for a lot of people, and I am open to continuing the conversation in the comments below, on TwitterFacebookYouTube, or LinkedIn, or you can contact me directly.

When “I’m Sorry” Isn’t Enough

Sorry Bout That! by Anne-Sophie Ofrim

Sorry Bout That! by Anne-Sophie Ofrim

I’ve encountered a significant number of people in my short legal career who were under the impression that they could absolve themselves from legal wrongdoings by simply apologizing. Unfortunately for them, that is often not the case.

When I first meet with a client, especially in situations where they suspect their intellectual property has been infringed, I start by asking, “How do you want this to end?” Their answer will inform me what I need to do to try to get their desired result (and if that result is available).

Sometimes my client simply wants the alleged infringer to stop using their work. That requires a cease and desist letter from me and the recipient to cease and refrain from using the material in question. An apology isn’t even required. However, if my client wants money, and my evaluation of their case shows that they are eligible to collect, “I’m sorry” will not be enough to resolve the situation.

In general, once lawyers are involved, “I’m sorry” is not going to be enough to fix the situation. If a person hires a lawyer, they are usually investing hundreds of dollars in an attempt to seek their preferred resolution. Very few people are willing to pay that amount just for an apology.

In my experience, when one side gets a lawyer the other side should get one too – if only for a consultation to understand the totality of the situation. They need to understand their options for responding to a cease and desist or a demand letter and the likely consequences of each potential course of action. In a perfect world lawyers talk to lawyers when there is a dispute. They know the law best and can often speak more candidly about the situation and achieving a resolution.

Every entrepreneur should watch Mike Montiero’s “F*ck You, Pay Me.” It’s an outstanding talk that shows how the legal system helps entrepreneurs protect their rights.

If you believe your rights have been violated or you’ve received a notice from someone’s lawyer accuses you of intellectual property infringement, breach of contract, or the like, contact a lawyer in your community who can analyze the situation and advise you on your options. If you want to chat more about this topic, you can contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

The Dark Side of Periscope

Mirror Image by The Joneses from Flickr (Creative Commons License)

Mirror Image by The Joneses from Flickr (Creative Commons License)

I was on Periscope the other night, talking with people about the legal implications of using live video apps, when an awful thought struck me:

You know someone is going to use Periscope for evil.

I got a sinking feeling in the pit of my stomach that sometime (probably soon) someone is going to use Periscope or a similar app to share a live broadcast of a suicide, sexual assault, or other equally horrendous activity.

I hate that horrible things like this happen and that anyone might think that it’s a good idea to broadcast it to the entire internet-accessible world. I also hate how powerless I am to stop these people from doing things like this. It’s like a train wreck, and I see it coming but because I don’t know when or where it will happen, there is almost nothing I can do to stop it.

The only thing I can think to do is create a post like this that will hopefully raise people’s awareness so that if you see a bad act in the works and you are in the position to take an action to stop or prevent it, please please please do it. Do not stand idly by when there’s a chance that you could prevent harm to another.

If you see a crime being committed on a live video app, report it immediately to the administrators of the app and as well as law enforcement. If you don’t know where the act is taking place, report it to the FBI.

Two of the reasons I became a lawyer are I like to help people and I like to solve problems. It’s so frustrating to find myself in situations where I feel like there’s nothing I can do to help a situation.

Part of being a social media lawyer means I have to keep up on what people are doing online and could be doing online. The downside of this is I have to think about these worst-case scenarios and accept that it’s more likely than not that at least one of them will come to fruition.

I am watching the legal issues with Periscope, Meerkat, and similar apps closely. If you want to talk more about internet or social media law, please contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

Legal Issues with Periscope

Vents by SecretLondon123 from Flickr (Creative Commons License)

Vents by SecretLondon123 from Flickr (Creative Commons License)

Have you tried Periscope? It’s one of the new livestreaming apps where you can let everyone into your world and they can post comments and questions. I’m on it. It’s pretty fun – except when it overheats my phone.

Of course, being a social media lawyer, I started thinking about what types of legal hot water someone could get into using this or any other live video app. Here’s my preliminary list:

Copyright
You own the content you post via Periscope, but you grant Periscope and anyone who has access to it permission to use it.

An artist may be upset with you if you use Periscope to display, distribute, or perform their work without their permission – i.e., if you’re playing someone’s song, doing a dramatic (or not so dramatic) reading, or showing someone’s art (even with an attribution).

Trademark
If you’re using Periscope to talk about products, make sure you’re not confusing people by giving the impression that you represent the company.

Federal Trade Commission Rules
If you are lucky enough to have sponsorship or otherwise be compensated for reviewing products, make sure you disclose that too. If you’re doing reviews on periscope, you’re legally required only to give truthful and accurate reviews of products and services. Otherwise, the FTC could fine you up to $11,000.

Trade Secrets
Every company has secrets that give them a competitive advantage. Make sure you don’t accidentally disclose your company secrets on your videos.

Privacy
Although there is no expectation of privacy in anything you do in public, there are a few exceptions for bathrooms, changing rooms, medical offices, lawyers’ offices, as well as within the walls of your home. Be thoughtful and respect full when it comes to shooting videos of others.

Remember, you have no expectation of privacy in anything you post online.  Just like people have been fired for other social media posts, you can be fired for a Periscope video. You could also do tremendous reputational harm to yourself.

Defamation
I can foresee people using Periscope to vent when they are angry. Be careful that you don’t cross the line and tell a lie about another person. Even if you didn’t intend to tell a lie, you could still face a lawsuit for defamation. If you are especially upset, it may be best to wait 24 hours to calm down and verify your information before talking about the situation on live video. Think before you speak.

These legal issues apply to all live streaming video apps so be careful before you jump on your virtual soapbox. The FCC does not regulate online streaming video, so there are no “deadly words,” but there are also no 7-second delays or buttons to bleep you out.

These are my rules of thumb when it comes to posting anything on the internet:

  1. Don’t post anything online that you wouldn’t put on the front page of the newspaper.
  2. Assume everything you post will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want to one of those people to see what you’re thinking about posting, don’t say it.

This is an area of law that is still new and developing. I’m excited and curious to see what legal cases will come out of live video apps like Periscope and Meerkat. If you want additional information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.