As promised here is the first installment of articles discussing the laws and regulations that apply to social media use and yes, to influencers. Intellectual property (IP) is a huge chunk of my law practice. I spend the majority of my time on trademark prosecution followed by some copyright registration and a lot of IP education. For a background on what a trademark or copyright is and how all of that works feel free to check out this article, this article, or even this one. Or, to be honest one of the other 50 articles I have on the topic. I am not going to spend time getting into the nitty-gritty of IP here so let’s just jump right into how this all plays out on social.
Before we get started just a disclaimer, every IP situation is different. These issues are often very fact intensive and the amount of yes but maybe’s that exist in the world of IP would be too much for me to account for in this article. So take this as general rules to follow when interacting and influencing on social media.
Social Media Posts are NOT a free for all
I think the biggest thing I see on social media is the unauthorized use of other’s posts. Taking a photo from someone’s timeline and adding it to yours might not seem like a huge deal. But guess what? It is actually copyright infringement. Guess why? Because if you “borrow” a post from someone else, it means you didn’t make it, they did…so per copyright law it belongs to them and only them.
And no, giving credit to the original poster does not absolve you of your infringement. In fact, it shows that you are acknowledging that the post/photo/information didn’t come from you. That is almost like an admission of guilt. Often times the original poster might see that their post has been taken and reposted without permission and not care for a multitude of reasons. However, that still doesn’t mean it’s an ok thing to do anytime you want.
Why does this matter? Some people spend a huge portion of their workday putting together what they’re going to post whether that includes scientific research to back up the claims made in their post, or filming a how-to video over and over to get the perfect 60-second clip. People put a huge effort into their posts and captions because they either a) have a large following already or b) they’re trying to grow their following. It would be silly to think that copyright law doesn’t apply to social media and leave the people who put forth such great effort with no recourse for when their viral post is stolen and used by someone else without permission.
I see many influencer accounts accuse other influencer accounts of stealing their IP. Sometimes it’s a post, sometimes it is an entire blog article. But, in either case, it is illegal and shouldn’t be done. If you’re an influencer or an aspiring influencer, or just a person on social media and you want to utilize a piece of content you didn’t create, do us all a favor and ASK for permission from the owner.
How many fake accounts does it take to trick the consumer?
Another issue I see all too often is the fake account or the imposter account. This is less of an issue with influencer’s themselves perpetrating this and rather other people trying to ride their coattails. But it is happening and it is a form of IP theft.
One, you can’t use someone’s name and likeness without their permission. And creating an account claiming to be a particular influencer using their photos, name, business website etc. is a huge no-no. I have dealt with this on behalf of a client before. An account claiming to be affiliated with my client’s business popped up one day. They used my client’s logo, business name, and posts from his real account (trademark and copyright infringement). The website linked in the bio of this page took users not to my client’s website but to some strange site no one should end up on. This was handled through Instagram who after much effort, agreed to shut down the profile. Side note: this doesn’t always work and most of the time you need to show a federal trademark registration and or copyright registrations to make it happen (all the more reason to get those registrations).
Fake accounts can be problematic for the business owner/influencer and for the consumer. You go to the influencer’s page expected them and get some random company out of China trying to hack your phone and the influencer loses out on your page visit because you went to the wrong place. It’s not good for anyone. But, this is the more obvious illegal activity when it comes to fake accounts and tricking the consumer…
Did that brand actually pay you?
I am not going to discuss brand partnerships and FTC regulations right now. But I have seen instances in which influencers create a false association between themselves and a particular brand. There is a difference between posting about a product or service because you like it, and posting something that makes it seem as though you’re somehow sponsored by that company or brand. I’ve also seen it in the reverse, probably more often, where a company tries to make it seem as though a particular influencer has agreed to be sponsored by them.
Both are big no’s. This again is a form of IP theft. If you’re the brand owner, don’t use an influencer’s photos, name, or even really reference them unless they’ve agreed to allow you to do this. Same to you influencers. One of the critical aims of IP law is to keep consumers from being confused in the marketplace about where something originates from. Creating a false association of any kind can cause consumer confusion. It can influence a purchasing decision, and it can definitely get you in trouble. So the rule of thumb here is this, if you are not in some kind of working relationship with the brand or the influencer don’t allow your posts to make it seem like you are. Just don’t be sneaky, and you should be fine.
Wrapping it up…
I have by no means covered all the potential IP issues that come along with social media. But, these are the main points that those of you in the influencer world should be aware of. To sum it up I want to leave you with these 4 main points:
- Don’t post content on any platform that you DID NOT create unless you have permission from the creator.
- Don’t use someone else’s images, name or likeness, or create an account pretending to be someone you are not.
- Don’t let the consuming public thing you have a working relationship with someone you don’t.
- Just to reiterate, DON’T USE CONTENT YOU DIDN’T CREATE.
Ok, hopefully, that clears things up a bit on the social media influencer front as it relates to intellectual property rights. As always, if you have questions comments or concerns feel free to shoot me an email to shannon@montgomerypllc.com.
Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.