Photos, the Internet, and the Law – FAQs

paparazzi! by federico borghi from Flickr (Creative Commons License)

paparazzi! by federico borghi from Flickr (Creative Commons License)

I get a lot of hits on my site from people asking questions about what they can and can’t do with photos that they get from someone else that’s sent to them, texted to them, or that they find online. In many cases, the person who took the photo (not necessarily the person in the photo unless it’s a selfie) is the copyright holder and so they have the right to decide when and how their photo will be copied, distributed, and displayed. If you want to use their photo, you need their permission. If you want to own the copyright, they have to give it to you in a written and signed contract.

Let’s look at some of the more common and interesting questions I get. (Of course, any situation involving the legalities of using a particular photo is fact dependent and you need to consider the specific circumstances. These cases are often governed in part by state laws so you have to look at what rules apply to you.)

May I Post Someone’s Photo on the Internet without Consent?
If we’re talking about a situation where you want to know if you can take a photograph of another person and post it online, the answer is often “Yes.” If you’re the photographer, you’re usually the copyright holder so you get to decide where your work is displayed. However, if you want to make money off the photo or use it for a commercial purpose, you often need the person’s consent.

If were talking about a situation where you’re not the photographer and you want to use another person’s photograph, you need that person’s permission to use their work.

What if I Illegally used Someone’s Photo but I had Good Intentions?
The law often cares about what you did more than your intentions. In many cases it doesn’t matter that you didn’t intend to hurt anybody or that you didn’t know what you’re doing was illegal.

If Someone takes a Photo of Me and They Don’t Delete it, Can I Sue?
It depends. Remember you have no expectation of privacy in public so if you’re just upset that a photo was taken and they don’t use it to harass you, make money, or otherwise violate your rights, there is often little you can do about it.

What are the Laws about taking Photographs of People on Private Property?
You would have to look at what laws apply in your state, but typically the property owner or manager sets and enforces the rules, including rules about photographs. Be mindful when you go into businesses or attend events that there may be a notice posted that informs you that by being on the property, you are consenting to being photographed and the property owner can use those images however they want without needing any additional consent or payment of compensation to you.

Can You be Sued if You Post Someone’s Picture Online if They Sent it to You in a Text Message?
The law treats photos taken by cell phones the same as other photographs. If someone sends you a picture in a text, you have permission to look at it. It doesn’t give you permission to send it to other people or posted online without the person’s consent. Be very careful if this is a situation involving a nude or intimate photo because the depending on the person in the photo’s age, it could be child pornography. Additionally, several states have passed criminal laws against revenge porn.

What if Someone took a Picture off my Facebook Profile and put it on Theirs?
When you post a photograph on Facebook, the “Share” function implicitly gives permission to anyone who has access to the image to share it according to the settings of the site. If it’s a situation where somebody downloads your photo or takes a screen shot that include your photo, and then posts it to their profile or somewhere else online, that is likely of violation of your copyright rights.

Is it Illegal for a Family Member to Post Pictures of You on the Internet?
It depends. The law applies equally to family members as to other people. If it’s their photograph, meaning they are the copyright holder, there may be little you can do unless posting that image somehow violates one of your rights. If you don’t like that someone is posting images of you online, hopefully they will respect you enough to remove them upon request.

As I said before, cases involving photographs are governed by federal and state laws, so if you have a legal question in this arena please consult a copyright attorney in the your community for assistance. If you believe that you might be the victim of a crime that involves a photograph, please call your local law enforcement agency.

If you want to talk about this issue further, please connect with me on TwitterFacebook, or LinkedIn. If there is a specific situation you want to discuss, please send me an email.

The Real Cost of a Social Media Misstep

Money by Andrew Magill from Flickr (Creative Commons License)

Money by Andrew Magill from Flickr (Creative Commons License)

I was talking with some non-lawyer entrepreneurs lately, and I asked them what they thought would be the worst case scenario if their company broke the law via their social media, and they both responded that they would have to take responsibility for their mistake, apologize, and do some damage control. While I appreciate that these business owners appeared to have integrity and good intentions, I internally cringed that they both assumed that saying, “I’m sorry,” should be enough to fix a problem.

I want to share some numbers for the costs a business could easily face if they violate a law with their online posts.

Trademark Infringement – Cost of Rebranding
Think about how much time and money you’ve spent selecting the name for your business or product, your logos, your slogans, your domain, and your website. Now, how would you feel if you had to do it all again? That’s what could happen if you select a name for your business or product that’s already been registered by someone else in your industry. In the best case scenario, they’ll send a cease and desist letter and demand that you rebrand. In the worst case scenario, they’ll sue you for infringement, and you could be spending tens of thousands of dollars in legal fees and fines.

This is why I suggest companies check the U.S. Patent and Trademark Database for registered trademarks to verify the name or slogan they want to use hasn’t been claimed by someone else.   I’m also an advocate of registering your trademark as soon as you can afford it, so no one can restrict your use of your own name or steal it from you.

Illegal Social Media Policy – at least $10,000
Every company needs a social media policy, but employers need to understand that a federal law called the National Labor Relations Act (NLRA) that protect union activities also apply to employees talking about their work – even in public online forums. If you fire an employee for violating the company social media policy and it turns out your policy violates the NLRA, you could be ordered by the National Labor Relations Board (NLRB) to pay the ex-employee back wages, damages, and offer them their job back. My friend who works on these cases says if you have to pay the ex-employee $10,000, you got off easy.

Copyright Infringement – $150,000 per Work Copied
Many business owners don’t understand that they can’t use any image they find via a Google Image search. There are even marketing “professionals” who will tell you that you can use any image you find online as long as you give an attribution and a link to the original. Both of these are excellent ways to commit copyright infringement. And photographers are becoming more savvy about protecting their rights so if you use their work they may send you a bill or a lawsuit instead of a cease and desist letter or a takedown notice. In the worst case scenario, you may face a lawsuit for $150,000 per image you used without permission.

Be careful if you outsource your content creation that your contracts clear state that the writer or artist who creates your content also indemnifies you if you are ever accused of copyright infringement because of something they created for your site or posted to your social media.

Defamation – $2,500,000
Defamation generally requires making a false statement about a person to a third party that hurts the person’s reputation. When I do talks about social media horror stories, I talk about a case where a blogger was sued for defamation because of one blog post and was ordered to pay him $2.5 million. 1 blog post. $2.5 million. (The case is currently up on appeal but I don’t think it looks good for her.) This is when little words matter because it’s easy to think you’re stating an opinion but your phrasing creates a statement of a fact – and if it’s a lie, it could be defamatory. Think before you post and check your sources.

ruthcover smallerPlease note, these numbers do not include legal fees you could face in addition to damages if you’re sued because of your social media posts. The legal issues listed above only scratches the surface of what wrongs a person or company can commit online. The good news is most of these problems are preventable with education and diligence. I strongly recommend you stay abreast of what laws apply to your social media postings and developments in this area of law.

If you need a legal resource for laymen on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to blogging and social media. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

The Legal Side of Revenge Porn

Untitled by seanmcgrath from Flickr (Creative Commons License)

Untitled by seanmcgrath from Flickr (Creative Commons License)

One of the downsides of technology is most people have the ability to create intimate photos and videos with their smartphones which is now leading to an increase in “revenge porn.” For those of you who don’t know, revenge porn is created when a person takes the photos or videos from their prior romantic relationship and posts them on the internet to humiliate their ex-partner. I think posting revenge porn is juvenile and disrespectful, but there are also legal implications in these situations.

Copyright Infringement
If you take an intimate photo of yourself and send it to your partner, you own the copyright in that image and therefore have the exclusive right to copy and distribute it. If your ex posts it on a website or shares it with someone without your permission, they are likely committing copyright infringement.  If you find a “selfie” photo of yourself on the internet that was posted without your consent, you may be able to get it removed using the Digital Millennium Copyright Act by sending a takedown notice.

Cyberharassment
Arizona has state laws against cyberharassment and against harassing someone via electronic communications, both of which are punishable by up to six months in jail and up to $2,500 fine. Other states have similar laws. If the person who posted the photos or videos did it with the intent to harass or harm you, the poster may have violated one or both of these laws.

Invasion of Privacy and other Civil Violations
Some people who are victims of a revenge porn situation are interested in a civil lawsuit. They may want to consult a lawyer to determine if the person who posted the pictures or videos likely violated your state’s laws related to invasion of privacy, infliction of emotional distress, and, if they’re making money off of you, the commercialization of your image. These are state law issues so you’d have to have a lawyer compare the facts of your case against your state’s laws.

Challenges in these Cases
One of the challenges in these cases is proving that your ex was the person who posted the photos or videos. The IP address will tell us from where they were posted so if they posted from home, that’s a good indicator that your ex did it. However, some people try to cover their tracks by using public Wi-Fi but there are other ways to gather evidence about the person who posted your intimate photos on the internet to discern their identity. There is always a chance that your ex isn’t the perpetrator but someone he/she shared your photos with (which could be another case against your ex)or a person who got access to your ex’s phone or computer without consent.

Another challenge in these cases is for people pursuing a civil lawsuit, you may win the case by you might not be able to collect if the defendant doesn’t have any money. The defendant doesn’t have any money, you might have a hard time finding a lawyer who will take your case unless you pay for your legal fees.

If you want to watch me jump on my soapbox about revenge porn, I made a video about it earlier this year.

If you are in a revenge porn situation, talk with the police and a lawyer who can discuss all your options. If you want more information about what you can/can’t post on the internet, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Creepy New Facebook Terms of Service Coming

Facebook’s Infection by Ksayer1 from Flickr (Creative Commons License)

When I got the notice that Facebook was updating its Statement of Rights and Responsibilities and its Data Use Policy, I didn’t think much of it. If you want to use their service, you’re stuck with their terms of service. I just made a mental note to verify that my privacy changes hadn’t changed when they roll out the new policies go into effect. But then a friend told me about some of the changes that made me take a closer look.

Facebook says, “Your privacy is very important to us.” That doesn’t mean they care about keeping your information private. That just means they’re telling you how they’re using it.

Facebook previous terms of service put us on notice that they treat your name and profile picture like public information and they basically track all of your activities on the Facebook site and mobile app – this includes when others’ tag you in a photo, status update, at a location, or if someone adds you to a group.  And don’t think about creating a profile with fake information because that’s against the rules too. When you post a photo on Facebook, you give them a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use” it however they want. If you delete a photo, the license ends, unless it’s been shared with others and they haven’t deleted it.

Facebook: The privacy saga continues by opensourceway from Flickr (Creative Commons License)

Facebook: The privacy saga continues by opensourceway from Flickr (Creative Commons License)

Now here’s something interesting, the old rules state you can’t tag anyone on Facebook without their consent. When’s the last time your friend asked for your permission to tag you? Facebook says tell your friends if you’re ok with them tagging you and if they refuse to respect your desire not to be tagged, then block them. (Blocking = no tagging for you)

So what’s going to be changing with Facebook? Well, they’re going to add a facial recognition program that will scan people’s photos and suggest friends to tag by comparing the photos to others’ profile pictures and other photos where you’ve been tagged. Does that sound a little Big Brother to anyone else?

I’m guessing this change is going to piss off a lot of people who know about it. I get hits on the law firm’s website every day from people who want to know if and how others can post pictures of them online or whether they can post pictures of others online. Every day.

I wonder how many people are going to change their profile picture to a photo of their pet and disallow all other tagging to avoid Facebook suggesting friends tag them when others post pictures of them. I bet more people will talk about this idea more than will actually do it.

And I don’t think this is a change but more of a clarification. The new rules say, “[Y]ou permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you.”  It’s their site and their rules, and they probably don’t care if you don’t like it.

If you don’t like these changes, you can bitch about it but accept it or delete your account. Unlike deactivating your account, this completely removes it from Facebook.

If you want more 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. If you need information or advice about a situation involving your Facebook, please contact a social media attorney in your community.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

How to Prevent Cyberbullying – Tips for Parents

Hopscotch by Dean McCoy Photography from Flickr

Hopscotch by Dean McCoy Photography from Flickr

It’s back to school time and most parents are rejoicing that their little angels are going to be at school 6-8 hours a day for the next 9 months. They’re going to be spending a lot more time than their peer group than during the summer so it might be a good time to review your family’s rules regarding where and how they spend their time online.

I know a lot of parents are concerned about cyberbullying – from a victim and perpetrator perspective. Here are my tips to help parents prevent their child from being involved in a cyberbullying situation.

1. Wherever your children are active online, you need to be there too.
Whatever social media sites your kids are using, you need to have an account and be connected to them, to at least be aware of how and to whom they are communicating. There should be a clear expectation that they can’t create a profile on a site or add an app to their phone without your permission.

2. Address behavior where your child may be bullying others or being bullied.
Have high expectations for your child’s behavior. They can have fun with their friends, but it shouldn’t cross the line into being cruel. You don’t want them to develop the habit of shooting their mouth off whenever they want online.

Likewise, be understanding and empathetic if your child is being targeted by their peers for being different. Support them and don’t ignore it. Work with them to decide the best way to deal with it.

3. Educate your children about communicating with strangers online.
Each family is free to set their own rules, but in general, I don’t recommend that parents allow their children to form relationships with people online that they don’t know in real life.

Carter Law Firm's Postcards

Carter Law Firm’s Postcards

4. Educate your children about the potential effects of every post.
Once a post is out there, you can never fully take it back. It will always be on a server somewhere. Even if the original post is deleted, you have no control over whether others took a screenshot or shared it with others before it was deleted. My rule of thumb is never post anything online that you wouldn’t put on the front page of the newspaper. The same idea should apply to sending text messages and taking pictures with your phone.

5. Know how to access your child’s cell phone.
I generally support respecting your children’s privacy but parents should be able to check their child’s text messages, pictures, and apps if a situation warrants it.

6. Cut off the bully’s access to your child.
There are ways to block users and report abusive people on every social media site that I know of. One of the best ways to help a child begin to feel better is to cut off the bully’s ability to communicate with them. If they’re being bullied via text message, consider changing their number.

7. If your child is being abused, report it to the appropriate social media forum, email provider, or cell phone service provider.
The terms of service have rules against using their forum to harass others and a social media site has the authority to suspend an abusive person’s account if they think it’s necessary.

8. Keep a record of the abuse.
There are times it makes sense to pursue a civil lawsuit or get law enforcement involved. If you do that, you will have to prove that the harassment occurred. A court can be sympathetic to your story, but they cannot punish the wrongdoer without sufficient evidence. Take screenshots of abusive posts on social media sites and don’t delete the abusive emails or text messages.

If you prefer to hear me talk about this topic, I made a video of cyberbullying tips for parents.

If you want more 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. If you need information or advice about a situation involving your child, please contact a social media attorney in your community.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

 

News Reporter Shea Allen Fired because of her Personal Blog

TV Camera on the grass by Simon Yeo (smjbk) from Flickr

TV Camera on the grass by Simon Yeo (smjbk) from Flickr

Shea Allen was a TV reporter in Alabama who has a personal blog. She was fired after she released a post of “No Apologies: Confessions of a Red Headed Reporter” where she, among other things, admitted she is “frightened of old people,” has “taken naps in the news car,” and that she’ll stop recording if you ramble and she deems you unnecessary for her story but let you think otherwise. You can check of her post for the full list. I’m not sure what to think of her statement that her best sources have secret crushes on her.

Shea’s boss was not impressed and fired her because the post did “irreparable harm to the station’s image.” She did an interview about the situation with Keith Yaskin from The Flip Side Communications and shared her thoughts about what happened here.

Shea doesn’t think that she should have been fired since the alleged inappropriate post appeared on her site where she’s sharing her personal views, and not representing the TV station and because she offered to take the post down once she became aware of her employer’s objections to it.

The First Amendment protects Shea’s right to free expression; however the fact that her statements were not illegal is not enough to keep her boss from firing her, at least if she was an at-will employee. At-will employees can be fired for any legal reason, including the fact that your boss doesn’t like what you posted on your personal blog as long as what you wrote about isn’t protected (i.e., your gender, race, religion, disability, etc.)

Keith hit me up for an off-the-cuff response interview and here’s what I had to say about bloggers like Shea being fired because of their blogs here.

What about the statement that she was just being funny? I believe that was her intent; however blogging gives you a voice but not necessarily a voice tone. You can’t guarantee that what’s funny to you will be seen as such by others, especially when it’s your boss reading about things that you do at work that he/she may frown upon.

I agree with Shea that her situation highlights a “gray area in social media.” It’s because of situations like this that every company needs a social media policy that provides clear dos and don’ts when possible but more importantly provides guidelines for employees when it comes to their online posts, whether they’re using the company’s social media accounts or their own. Companies should remind employees that their posts are permanent and that they should treat each post like a digital billboard that millions of people might see.

I also think that Shea’s confused about the limits of the freedom of speech. It applies to everyone in the U.S., but it doesn’t protect you from all the consequences that may occur because of what you said.

If you want more information on this topic, please check out my newly revised book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Independents Week Specials at Carter Law Firm

Carter Law Firm Independents Week 2013One of the things I love about being a solo attorney in Phoenix is I get to be part of Local First Arizona. This is an organization for locally-owned businesses and it’s a great place to meet and connect with amazing professionals in the state.

Independents Week is coming up June 30 – July 7, 2013. Local First created the Golden Coupon program for this week to celebrate these businesses and give you another reason to check out the independent businesses in your community. Dozens of businesses will be giving patrons a 20% discount if they shop with a Golden Coupon during Independents Week. Dozens of Local First members all over Arizona are participating. Check out the full list on the Local First website and my list of places I’m excited to visit on The Undeniable Ruth.

After seeing the success of last year’s Golden Coupon program, Carter Law Firm is participating in this year’s program and offering 20% off legal consultations. Since there are only so many hours in the day, the firm only requires you to contact us during Independents Week to get in on the discount. You can schedule the consultation itself anytime in July 2013 and use your Golden Coupon.

Here’s how to use your Golden Coupon with Carter Law Firm:

  1. golden-couponPrint the Golden Coupon from Local First Arizona.
  2. During Independents Week (June 30 – July 7) contact the Ruth and say you want to book a legal consultation with your Golden Coupon.
  3. Schedule you appointment for any mutually agreed upon time during July 2013.

Please note, that you should schedule an appointment to talk about your business, intellectual property, social media, or flash mob law needs. All other legal questions are outside the firm’s scope of practice.

Don’t forget to check out all the other locally owned businesses that are participating in the Golden Coupon program. This is a great opportunity to try out a new place or revisit a business you love in your community.

You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

Carter Law Firm’s Top 10 Posts From 2012

Fun with leftover sparklers #10 by yahtzeen from Flickr

Fun with leftover sparklers #10 by yahtzeen from Flickr

It’s been an amazing first year at Carter Law Firm! Thank you to everyone who made it so wonderful. According to my analytics, these were the most popular posts from this year. Enjoy!

 

Speaking at Phoenix Comicon 2012, Ruth Carter photo by Devon Christopher Adams

Speaking at Phoenix Comicon 2012, photo by Devon Christopher Adams

When Can Someone Post Photos Of You Online

What’s Up With The Disclaimers On Facebook

How To Respond If An Interviewer Asks For Your Facebook Password

How To Start A Business In Arizona

Woman Attacks Camera Man On Camelback

Copyright Infringement On Pinterest

Avoid Piercing The Corporate Veil

Creative Commons Images For Your Blog

The North Face vs The South Butt Trademark Saga

I’m An ABA Legal Rebel!

Have a great new year everyone! I’m excited for what’s to come and sharing it with you.

You can connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

On Being an Outspoken Blogger

Call a spade a spade by scarycurlgirl_photos from Flickr

Call a spade a spade by scarycurlgirl_photos from Flickr

I had the pleasure of speaking at TechPhx last weekend. My presentation was entitled The Legal Side of Blogging: 10 Questions to Ask Before you hit “Publish.” We had a great discussion about how to be an outspoken blogger without setting yourself up to get sued for defamation or invasion of privacy. Hat tip to Tyler Hurst who joined us via Ustream from Portland.

I walked away from the discussion with the reminder that big problems can result from little mistakes. Often times saying less is the best course of action. Sometimes it’s best to point out the dots and let your readers connect them. If there’s a news story that’s a hot topic in your community, you may want to write about the topic in general instead of the specifics about the situation. Your readers will know what you’re alluding to without having to explicitly state it.

When you’re a passionate writer, it’s important to state the facts and your feelings as they are without over-embellishing. Don’t manipulate the facts to get the message you want. Take a step back and review your work. Ask yourself what you can think, what you know, and what you can prove. When something is a rumor or an allegation, state that and cite your source when you can. Always be mindful of the fact that you can be sued for defamation if you repeat someone else’s defamatory statement – even if you didn’t know it was false.

One of my favorite ways to state my views without having to be so blunt about it is to quote someone who shares my perspective. I could call someone that I dislike or disapprove of an ass on my blog, but I think it’s more fun and effective to listen when others are talking about the issue and quote one of them when I hear them say “He’s a prick.”

If you want to learn more about your online dos and don’ts, check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can also connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.