FTC & Promotions – Always Disclose Relationships

My box of Mental Mojo - love this stuff! (Thanks to the owners for sending me free product!)

My box of Mental Mojo – love this stuff! (Thanks to the owners for sending me free product!)

My friends own a company called Mental Mojo – it’s a powder that contains caffeine and cognitive enhancers that you mix in water. I drink it when I’m tired – it helps me get my work done without making me jittery. (I love that it turns my water super nerd green, which reminds me of this infamous exchange between Data and Scotty on Star Trek: The Next Generation.)

Because I talk about it so much online, I usually get my Mental Mojo for free (and they’ve invited me to the taste test for the new flavors). I’m not a paid spokesperson for this company, but I do get benefits from promoting the product. As such, every time I talk about drinking free product, I need to disclose my relationship with this company – not just because it shows transparency, but because the federal law requires it.

FTC Rules about Promotions
The Federal Trade Commission has strict rules about making “clear and conspicuous” disclosures when a person has a relationship with a company. These rules apply to spokespeople, online contest participants, product reviewers, and companies that use affiliate links on your site. When you are compensated for giving an opinion, you have to disclose your relationship.

If you fail to disclose a relationship with a company, the FTC can fine you up to $11,000. And they can go after you or the company.

Even in 140 Characters
And don’t think for a second that tweets or other micro-form social media sites are exempt from this rule. At the very least, you have to include “#ad” on your post. It’s not enough to include a link to a site that includes the disclosure of your relationship.

Truthfulness and Transparency
Whenever you write a product review, whether it’s on a review site like Yelp, a product review blog post, or providing a quote for their website or LinkedIn profile, you must provide a truthful and accurate review of the product or service. Posting fake or embellished reviews (positive or negative) violates the FTC rules.

I’ve written product reviews and I appreciate that my editors respect the FTC rules by asking us to describe the benefits and drawbacks of each product we try.

Video Disclosures
If you do reviews in video form – including unboxing videos – you need to disclose when you get free product and provide honest reviews. The FTC says it’s not enough to have the disclosure in the video notes. You have to say it or post verbiage to that effect at the beginning of your video and possibly repeat this information throughout the video depending on its length.

This disclosure doesn’t have to be complex. It can be something like, “The guys at Mental Mojo sent me this free box of their product. Let’s try it out.” (If you are trying Mental Mojo for the first time, the flavor may be a bit strong. Until you get used to the taste, you may want to mix it with club soda instead of plain water. The carbonation helps take the edge off.)

Final Thoughts
Disclose disclose disclose. If you get a benefit from talking about a product or company online, disclose it. Whether it’s your employer, a client, or a company that sends you stuff for free – it should be crystal clear to anyone who sees your posts that you have a relationship with the company.

If you work with spokespersons or campaign partners, make sure part of your relationship includes an educational component about their obligation to disclose your affiliation whenever they talk about you on any platform.

I spoke about this topic earlier this year at Content Marketing World. Be sure to check out the follow-up article about this panel by Northeast Ohio Media Group.

If you want more information about this topic, please check out 6 Things to Know About FTC Disclosures When Working with Influencers or my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about a specific question related to the FTC rules and promotions, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Periscope Summit Recap

My Badge from Periscope Community Summit - September 2015

My Badge from Periscope Community Summit – September 2015

I had the pleasure of being on a panel with Mitch Jackson to discuss the legalities of live-streaming video apps at the Periscope Community Summit last week in New York. We had a blast. Special thanks to the organizers of this event.

The Periscope user community is so friendly and accepting. I hope we’re invited back to the next Periscope Community Summit in San Francisco this winter. Here are some of the take-away lessons from our panel:

There is No “Undo” Button. Unlike other social media platforms where you can edit your work before you release it, Periscope videos are live. If you are someone who tends to embellish, be excessively emotional, or otherwise get carried away, perhaps you shouldn’t ‘scope without thinking your ideas through. Because once you put something out there, you can’t take it back and you may not be able to apologize your problems away.

It’s Probably Illegal to ‘Scope that Concert. Many artists don’t allow photos or videos during their shows. This also applies to Periscope and other live video apps. Ditto for professional sports. Read the back of your ticket carefully and be prepared to be kicked out if you do it.

Be Careful if you do Karaoke on your ‘Scope. It seems like a lot of people sing when they are on Periscope, whether they are singing to a backing track or along with a song. When you buy a CD or an mp3 of a song, you are usually making a purchase for individual use and enjoyment. If you play that song on Periscope, you’ve created a public performance, which usually requires a separate license. If you use Periscope to promote yourself as a musician and you’re doing covers, you should look into buying a license from the appropriate source like BMI or ASCAP.

Playing Clips with Commentary is Probably Ok. If you review books, music, movies, and/or video games on your ‘Scope and you want to play audio or video clips of whatever you’re reviewing, that’s likely permissible under the fair use provision of the Copyright Law. This is particularly true if you’re adding your original thoughts on the topic and you aren’t a substitute for the media you’re discussing.

A Word of Warning: Whoever owns the copyright in a work has the exclusive right to decide where and when the work will be copied, distributed, displayed, and performed. If they suspect that you are violating their rights on your ‘Scope, they will decide if and how they will lay the smack down on you for violating their rights. This could be anything from a cease and desist letter to a lawsuit in federal court.

As always, these are my two rules of thumb for staying out of trouble on the internet:

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

If you want to know more about the legalities of streaming your life on the internet, please check out this post I wrote about the law and Periscope. If you want a resource that addresses the broader issues of how the law applies to all social media, 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 a specific question related to copyright or internet law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Fair Use Victory!

Bambi vs. Godzilla (211/365) by JD Hancock from Flickr (Creative Commons License)

Bambi vs. Godzilla (211/365) by JD Hancock from Flickr (Creative Commons License)

The Ninth Circuit of the Federal Court handed down an important ruling regarding fair use this week. In Lenz v. Universal, aka the “Dancing Baby” case was about copyright, DMCA takedown notices, and fair use. The Electronic Frontier Foundation (EFF) sued Universal Music Publishing Group after Universal sent a Digital Millennium Copyright Act (DMCA) takedown notice when a mother uploaded a 29-second video of her baby dancing to a Prince song.

The key element of this court ruling is that the court declared that “copyright holders must consider fair use before sending a [DMCA] takedown notice.” Prior to this case, fair use was regarded as an “affirmative defense.” If you’ve seen my YouTube videos, you have seen this one where I declare, “Fair use is a defense, not a permission slip.” This court said that’s not the case, but rather that fair use is authorized by the Federal Copyright Act. There is no copyright infringement if your use of another’s copyright-protected work is permitted by fair use.

If you’re interested in learning more about fair use, I wrote a post that includes a mnemonic device for the fair use factors for a panel I did at Phoenix Comicon on fair use and fan art/fiction.

There are two downsides to the case (at least for now):

  1. Although the court said that copyright holders must consider fair use before sending a DMCA takedown notice, they only have to have subjective good faith belief that the use of the copyrighted work is illegal, even if this belief is objectively unreasonable.
  2. This ruling only applies to the Ninth Circuit. The Ninth Circuit is comprised of Arizona, California, and must of the western United States. However, this ruling is not binding on the other ten Circuit Courts, but they can take it under advisement in future cases.

This case is a step in the right direction and will hopefully lead to fewer abuses of the DMCA. You can read the EFF’s full report about the case here.

Footnote: This case took eight years to reach this ruling. Sometimes pursuing a lawsuit is the right decision, but you have to be prepared to be in it for the long haul.

How the copyright laws apply to the internet is a legal issue that is constantly developing. If you need a resource about how the law applies to social media, 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 a specific question related to copyright or internet law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Who’s Talking to your Kids Online?

Hacker by Zodman from Flickr (Creative Commons License)

Hacker by Zodman from Flickr (Creative Commons License)

Did you see this social media experiment by Coby Persin where he pretends to be a 15 year-old boy? He approached a handful of 12-14 year-old girls online and invited them to meet in person. In each situation the parents were in on the act and all of them were convinced that their daughter’s wouldn’t accept the invitation, but each girl did – meeting him at a park, inviting him to their house, and getting into his van.

This video was instantaneously popular when it came and it’s had millions of hits, but I waited until now to talk about it, because this isn’t a one-and-done topic. This is a conversation parents need to be having with their kids on an ongoing basis about talking to people online and crossing the line from online interaction to meeting in the real world.

I have always recommended that parents be on the same social media platforms as their kids so they can monitor what they’re children are doing online. Parents should also know the passwords for their kids’ phones so they can check their text messages and photos. (And I’m an advocate of teens having some privacy, but it shouldn’t be a free-for-all.) After seeing this video, I have a few more suggestions for parents to protect their kids online.

1. Be Aware of Who your Kids are Talking to Online.
Just like you have at least a passing familiarity about who your kid knows at school and in their extracurricular activities, you should talk with your kids about who they talk to online and via text messages. Know who is an influence in their lives. If they mention someone new or become more secretive, that should give you a reason to probe deeper into what’s going on. It could be standard teenage rebellion, but it could be a reason for concern.

2.  Remind your Kids: “Don’t Befriend Strangers Online.”
I have a personal rule – if you’re not my friend in real life, you don’t get to be my “friend” on Facebook. Anyone can message me (because I use social media professionally) but that’s where I draw the line. I recommend the same rule for kids. The fact that someone looks pretty or appears to be a friend of a friend is not a good enough reason to have an ongoing connection. They may have a conversation because they’re fans of the same thing or in a Facebook group, but that shouldn’t be enough to allow that person more than surface access to you.

3.  Teach your Kids: “People Present an Altered Self Online.”  
I believe that most people are good and have good intentions; however, when it comes to the internet, everybody lies. Some people present their best self while others blatantly present a false self. Think of everyone online as a persona more than a person – at best you’re only seeing one side of them. Just like you shouldn’t compare your body to airbrushed fashion models, don’t compare yourself to someone’s posts online.

Keep the conversation about online safety going. Show your kids Coby Persin’s video and TV programs like To Catch a Predator and talk about the fact that not everyone is what they appear to be in real life compared to what they say online. Every teenager should read and own The Gift of Fear by security expert Gavin de Becker before they get their driver’s license. (I am not a paid spokesperson for Gavin de Becker. I’m just a fan of his work.)

Internet safety is a complicated topic.  If you want to chat with me more, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

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.

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.

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:

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).

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.

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.

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.