Supreme Court Rules on Social Media & Free Speech – What It Means

June 3, 2015 by 2 Comments
Man Holding Laptop Computer Typing While Dog Watches by Image Catalog from Flickr (Public Domain)

Man Holding Laptop Computer Typing While Dog Watches by Image Catalog from Flickr (Public Domain)

Earlier this week, the U.S. Supreme Court released its ruling on the first social media free speech case.

Anthony Elonis was previously convicted for violating a federal law for posting threatening messages on his own Facebook page. The court that convicted him did so based on the negligence standard, which is whether a reasonable person would interpret his statements as threats.

The Supreme Court ruled that the lower court used the wrong standard in making its decision. A court can’t use the reasonable person standard to decide cases like this – it has to be higher standard than that.

So what happens now? The Supreme Court sent the Elonis case back down to the lower court. The lower court will have to decide whether it should apply the recklessness standard or whether it should examine Elonis’ intent behind the posts in question.

What does this mean for other cases, perhaps those involving domestic violence or cyber harassment? We’ll see. All we know now is that the court has to apply a higher standard than simply asking whether a reasonable person who interpret a statement as a threatening. We will have to wait and see what standard will ultimately apply.

Legal Side of Blogging Book CoverDo I think the Supreme Court made the right decision? Yes. Words are clumsy beasts, especially on social media where we deal with words without inflection and non-verbal cues to decipher what the speaker is saying. I don’t want to see people punished for being inarticulate when exercising their First Amendment right to free speech. We need to examine the statement in the context in which it was made when determining whether a statement violates a criminal law.

As always, think before you post. Don’t use this decision as a license to post whatever you want online. You can face serious repercussions criminally, civilly, and socially for what you post on the internet. If you want to read more about this situation, I highly recommend a post written by my fellow legal eagle, Mitch Jackson. If you’re looking for a resource about internet and social media law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

If you want to chat more about free speech and the internet, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

Filed Under: Cyberbullying & Cyberharassment, Internet law, News Tagged With: , , , , , , , , ,

Richard Prince’s “New Portraits” – Art or Infringement?

May 25, 2015 by 5 Comments
Photo courtesy of Gagosian via Gothamist

Photo courtesy of Gagosian via Gothamist

A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

More articles about this situation:
Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
Richard Prince Sucks

Filed Under: Intellectual Property, Photography & the Law Tagged With: , , , , , , , , , , , , ,

Top Three Legal Tips for Dad Bloggers from Dad 2.0 Summit

February 22, 2015 by 4 Comments
Awesome Bo-Gos at the Dad 2.0 Summit 2015

Awesome Bo-Gos at the Dad 2.0 Summit 2015

I had an awesome time at Dad 2.0 Summit – an awesome conference for dads who blog. I was invited to the conference to hang out in the Knowledge Bar during the breaks to talk with people about the legal dos and don’ts when it comes to their blogs. One gentleman asked me what three tips I’d give to the conference’s audience. Here’s what I said.

1. Be Thoughtful about what Images you Use on your Site.
Unfortunately, a lot of people think they can use any image they find online as long as they give an attribution and a link back to the original. What you’re likely doing is committing copyright infringement and telling the artist what you did. I recommend getting permission from the person to use their image or only use Creative Commons images for your site. I only use images that come with the license that lets me modify and commercialize them.  For more information about this topic, check out this post and/or watch this video.

2. Register your Trademarks.
This is my soapbox issue for the year for bloggers, vloggers, and podcasters – register your trademarks! If you don’t, someone else can start using it, register it with the U.S. Patent and Trademark Office and they could essentially shut down your site. You’d have to decide whether to fight them for it or rebrand. It’s easier and cheaper to protect yourself by registering your brand first. Then that way you’ve secured your rights to your name, logo, and slogan everywhere in the U.S. For more information about this topic, check out this post and/or watch this video.

3. When you get Free Products or Write Sponsored Posts, Disclose It.
Federal law requires you to only give true and accurate reviews when you do product reviews and you must disclose when you are compensated for giving your opinion. You have to tell your audience when you get products for free, participate in campaigns for compensation, or have sponsors. This rule applies to blogs, review sites, and anywhere you post on social media when you’re compensated for doing so. For more information about this topic, check out this post.

The laws regarding blogging and social media are still developing so it’s important that you stay abreast of changes as they occur when they apply to you. I will do my best to create content on developments in social media and internet law. If you’re looking for a resource that reviews the laws that apply to bloggers, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can always send me an email if you ever have questions, and please stay connected with me on Twitter, LinkedIn, Facebook, and YouTube.

If I don’t see you before then, I look forward to re-connecting with you at Dad 2.0 Summit next year!

Filed Under: Internet law, Legalities of Blogging Tagged With: , , , , , , , , , , , , , , , , ,

Bloggers & Vloggers: Register your Trademarks!

February 3, 2015 by 4 Comments
Registered by tup wanders from Flickr (Creative Commons License)

Registered by tup wanders from Flickr (Creative Commons License)

Ever since I heard about the Turner Barr story in 2013, I’ve been on everyone I know – including recreational bloggers and the vloggers – to register their trademarks in at least their sites’ names with the U.S. Patent and Trademark Office (USPTO). If this isn’t on your to-do list for this year, take a break from reading this post and go add it right now.

For those of you who don’t know or don’t remember, Turner Barr started an awesome blog called Around the World in 80 Jobs where he writes and creates videos about his travel adventurers and how he works from place to place. It was a simple but brilliant idea. He didn’t register his trademark. I bet the thought never crossed his mind. I bet he never thought that another company would register the trademark “Around the World in 80 Jobs” and essentially shut down his site. Thankfully, Turner was able to resolve the situation in part by publicly calling out the people he suspected stole his idea. He has since registered the trademark for his blog.

When I saw this situation where it looked like another company ripped off an individual blogger’s idea and name for themselves and basically (temporarily) stole it out from under him by registering the trademark, I became scared for every person I know who has an amazing blog or vlog. I don’t want to see them in the same predicament. It also reminded me to be a diligent about reminding and re-reminding my clients who are startup entrepreneurs about the importance or registering their trademarks so they don’t end up in the Burger King situation.

This is the type of situation potentially where someone can steal your idea and you will have to fight to try to get it back. And it’s the type of situation that is easily prevented by registering your trademark first. Once you have a registered trademark with the USPTO, you can stop other people and companies from using a name that is confusingly similar to yours in your industry.

Compared to the heartache, headaches, and what you will pay a lawyer if you end up in a situation like Turner Barr did, filing at trademark application is cheap. The USPTO recently lowered their filing fees so if you did your application yourself (which I don’t recommend) it may cost you only $275. If you’ve never filed the trademark application before, I suggest you at least consult a trademark attorney in advance just so you understand the trademark process including what information you have to give the examining attorney to prove that you’re using your trademark. It may not be as expensive as you fear.

And just to show that I put my money were my mouth is and that the shoemaker’s children have shoes in this situation, I recently submitted a trademark application myself for my personal blog, The Undeniable Ruth. I want to be able to call myself “undeniable” for the rest of my life and this is the first step to ensuring that.

If you have questions or want to talk about your trademark needs, feel free to connect with me on Twitter, Facebook, LinkedIn, or you can send me an email.

Filed Under: Business Law, Featured Post, Intellectual Property, Internet law Tagged With: , , , , , , , , , , , , , , ,

Photos, the Internet, and the Law – FAQs

January 26, 2015 by 8 Comments
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 Twitter, Facebook, or LinkedIn. If there is a specific situation you want to discuss, please send me an email.

Filed Under: Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , , ,

Yahoo Taking Advantage of Creative Commons with Flickr Wall Art – Hope they Don’t Screw it Up

November 23, 2014 by Leave a Comment
1404 Phoenix Zoo-59 by Devon Christopher Adams from Flickr (Used with Permission)

1404 Phoenix Zoo-59 by Devon Christopher Adams from Flickr (Used with Permission – Devon & I have a standing agreement about using his work.)

My friend and amazing photographer Devon Christopher Adams tipped me off about Yahoo’s announcement that people can buy Flickr Wall Art of Creative Commons images from Flickr . If Yahoo does this right, it’s a brilliant business move. If they do it wrong, I hate them.

When a photographer posts their images on Flickr, they can designate whether they are restricting all copyright rights (“all rights reserved” aka don’t use my work without ask my explicit permission first) or attaching a Creative Commons license to it. A Creative Commons license means anyone can use the photographer’s work as long as you follow the rules of the license. For example, I often use Creative Commons images on my blogs but I only use photos that come with the license to modify and commercialize them. This allows me to crop the photo and to use it for business purposes – like a blog post on my law firm’s website.

If Yahoo only uses images for its wall art product that come with the license to commercialize them, then Yahoo already has permission to print these images onto paper or canvas and sell them, as long as they follow the other rules of the license.

Every Creative Commons license I’ve ever seen requires giving the copyright holder an attribution for their work. (Always give credit where it’s due!) I would hope that Yahoo would put the attribution on the front of the image – in a lower corner, so anyone who sees it can know who created the image. If that’s not possible (and good luck convincing me it’s not possible), at least put a non-removable label or notice on the back of who the copyright holder is and a URL to the original image on Flickr. If they don’t give an attribution as the license requires, they could be committing copyright infringement and could face a cease and desist letter, a bill, or a lawsuit.

I’m a huge advocate of copyright holders, especially in the arts community. I think a lot of photographers aren’t given the credit they deserve because many people assume they can replicate a photographer’s work with their smart phone – until they try to do it and they see how much skill it really takes.  Photographers constantly have to deal with people stealing their work online. It’s so wonderful to see them becoming more savvy about their legal rights.

I hope Yahoo is diligent about giving photographers the credit they deserve and respecting when a photographer changes the license on their Flickr account to only allow non-commercial uses. This won’t impact a person’s ability to own wall art of it prior to the license being changed; but Yahoo should stop selling it if the artist doesn’t want the company making money from it.

I hope Flickr Wall Art becomes an avenue for photographers to get exposure for their work in ways that will create new opportunities for them and that they won’t feel like Yahoo is taking advantage of them. If done properly, whoever at Yahoo who came up with this idea deserve a muffin basket for seeing this business opportunity.

Copyright and the internet is a murky area of law, and one that is still evolving. If you want more information about this topic, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , ,

What Should You Do If Someone Steals Your Work

October 28, 2014 by Leave a Comment
Attention - Man Stealing White Stripe by Julian Mason from Flickr (Creative Commons License)

Attention – Man Stealing White Stripe by Julian Mason from Flickr (Creative Commons License)

Copyright infringement appears to be rampant on the internet. Some people don’t understand that they can’t use anything they find online. They don’t understand that the law lets the copyright holder dictate where their work is displayed and distributed. Some people get defensive when they get caught and say you should be happy that you’re giving them exposure.  Others know it’s illegal and take the gamble that you won’t notice or that you won’t object if you see what they’ve done.

Make Sure It’s Your Work They Copied
People don’t always own what they think they own. Check your contracts to verify that you are the copyright owner and not just the creator of a work. Remember – employees don’t own the copyright in anything they create within the scope of their job but independent contractors retain the copyright in anything they create unless there’s a written copyright assignment or work made for hire contract. Additionally, two artists can independently come up with similar ideas for original works and it may not be problematic so long as they’re only claiming rights in what they created.

How Do You Want This To End?
This is the question I ask all my clients who are in a suspected intellectual property infringement situation. Their goal determines my course of action. Ideally you should determine how you want to react to infringement before it occurs so you can lay the foundation in advance for your desired outcome.

If you just want the infringer to take down your work, you can respond with one of the following:

If you want the alleged infringer to pay you for using your work you can send a bill or sue them for infringement. If you want to pursue one of these options, you definitely want to use a lawyer to contact the alleged infringer on your behalf or through the court.

If you’re OK with the person using your work, you should send them a notice that gives them permission and requests they ask permission before using your work in the future. You always want to respond when you suspect someone is using your work without consent. Otherwise you could create the impression that you’ve attached a blanket license for anyone to use your work which could hurt your chances of going after other suspected infringers in the future.

Please note – you can send a notice without being a jerk about it. Jack Daniel’s sent what’s been referred to as the nicest cease and desist letter when an author copied Jack Daniel’s label on his book cover.  You could write or ask your attorney to do something similar

If you need a legal resource about how to avoid problems related to copyright and trademark infringement online, 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 intellectual property and the internet. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , , , , ,

What to do if You’re Accused of Copyright Infringement

October 21, 2014 by Leave a Comment
Watch it or lose it - thieves at work by Tristan Schmurr from Flickr (Creative Commons License)

Watch it or lose it – thieves at work by Tristan Schmurr from Flickr (Creative Commons License)

The owner of a copyright has the exclusive right to control where their work is copied, displayed, and distributed. If they think that someone is using their work without permission, there’s a good chance they’re going to react. They may be passive aggressive and write a blog post about you. They might b direct and send you an email or call you. If they sell their work for a living, they may just send you a bill. They may also hire a lawyer to send a cease and desist letter, a DMCA takedown notice to your webhost, or they may just sue you.

If you are accused of violating someone’s copyright, the first thing you want to do is examine the situation. What are they claiming is on your site or your materials that belongs to them? Some people will tell you that you can use anything you find on the internet as long as you provide and attribution and a link to the original – and that’s just not true. What you may have done is commit infringement and admit it. So look at the image or text in question and try to determine where it came from. If you created it from scratch, there’s a good chance it’s not infringement. If you got it from someone else, you may have a problem.

In most cases, it’s a good idea to schedule an appointment with your copyright lawyer if you’re accused of committing infringement, especially if the other side contacted you through their lawyer. He/she can examine the situation, explain your options, and help you choose the right course of action for your situation. In most cases, the person who claims you stole their work doesn’t want to sue you. They likely want you to stop using their material, and possibly pay a licensing fee for the time you used it. In many cases you want to respond either as yourself or through your lawyer with what you did or could do to resolve the situation.

There are times where you might want to risk not responding. Some people do this is they think nothing will happen if they ignore the notice from the person claiming you stole their work. Sometimes this is effective. Sometimes it leads the person to escalate and sue you or report your company to a regulatory body that oversees your company. It’s not a decision to make lightly.

So what are the best and worse-case scenarios in these situations? In the best-case scenario, the person making the claim against you is wrong because you haven’t violated their copyright sending a response to that end or ignoring them will resolve the situation. In the worst-case scenario, you’ll be sued (and lose!) for willfully stealing someone’s copyright and sued for $150,000 per image or article you stole, plus the copyright holder’s attorney’s fees.

Legal Side of Blogging Book CoverBecause the penalties can be so high, you want to be careful when you use other people’s content on your website or marketing materials. You need to be sure that you own or have permission to use content created by third parties.

If you need a legal resource on this topic or anything related to the laws that apply to social media, 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 copyright and the internet. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , ,

Telling the Truth when you get Free Stuff

October 14, 2014 by 1 Comment
Our Books Arrive by Jarkko Laine from Flickr (Creative Commons License)

Our Books Arrive by Jarkko Laine from Flickr (Creative Commons License)

One of the perks of being a blogger is sometimes you get free stuff. Companies will send you free things with the hopes that you’ll write about it. One of my writing gigs is product reviews for lawyers so I have to use various office gadgets and software and write about it.

If you are lucky enough to get free stuff in the mail or you review products as part of your job, there are some rules you need to know. By federal law, you have to do two things if you do product reviews:

Your review of the product must contain your true opinion about it that is not misleading.

You must disclose when you are compensated for giving your opinion.

This means that you have to be honest about what you think about a product and not feel compelled to say nice things just because you got it for free or paid for the review. And you have to tell the audience that you got a benefit for the review – perhaps so they can be aware of the potential bias. The disclosure doesn’t have to be a big deal – just a “XYZ sent me this product for free and here’s what I think about it.”

If you don’t follow this rule, you could be fined up to $11,000 by the Federal Trade Commission. They can go after the reviewer or the company who sent the product. I suspect they’ll go after who has money to pay the fine.

Legal Side of Blogging Book CoverA company that sends out free products to bloggers or reviewers should include a reminder to their reviewers that they need to comply with this rule. This rule also applies if you’re writing comments on other blogs or websites or writing original content for your own site.

This rule also applies to review sites like Yelp and Trip Advisor. If you’re a Yelper, your must only post accurate reviews and you can only review products and services you’ve used. A company can’t legally tell its employees to post exaggerating positive reviews about the company or fake negative reviews about their competition.

If you need a legal resource on this topic or anything related to the laws that apply to social media, 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 copyright and the internet. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Internet law, Legalities of Blogging Tagged With: , , , , , ,

The Real Cost of a Social Media Misstep

September 9, 2014 by 5 Comments
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 Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

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