SOCIAL MEDIA
“Last year, at the time of the Vauxhall helicopter crash in London, various newspapers published some photos of the crash that had been uploaded on Twitter without the photographer’s permission.
“When the London Evening Standard newspaper received a complaint, it immediately said there was no question that it would pay the photographer if contacted for payment, but it had released the photos in the heat of the moment and had not been able to contact the photographer.
“Tese cases are reassuring because it was recognised that just because a person shares content, it doesn’t mean they automatically waive their rights.”
While a photograph is an obvious creative work that can be protected by copyright, what would be the chances of successfully protecting a tweet, which is capped at 140 characters, or a status update?
To be protectable under US copyright law, a work must be fixed in a tangible medium and be an original work of authorship.
Ann Ford, partner at law firm DLA Piper, says that while a status or tweet would “clearly” meet the fixation requirement, it is unclear whether it would be considered original.
“It is certainly possible to envision 140-character poetry, or
longer-form storytelling through
status updates. Tat being said, it is also clear that there are volumes of status updates and tweets that do not warrant protection, as they merely recount facts or other very short phrases.
“It is important to keep in mind that protecting anything other than clearly original material arising out of a true creative
spark could
potentially expose a massive number of users to liability for copyright infringement,” Ford says.
Cassidy adds: “Previous attempts to protect single words, titles or slogans as literary works have failed because it was generally accepted that they were not ‘literary works’ in the first place, or because they were not the product of sufficient skill and labour to be original.”
However, Cassidy refers to the NLA v Meltwater case, where the Court of Appeal in the UK said newspaper headlines may be protected under copyright as literary works.
“By analogy, might certain tweets or Facebook statuses also qualify for protection?” asks Cassidy.
While social media create worries from a copyright perspective, there are also significant concerns for trademark owners.
22 Trademarks & Brands Online
“THE ‘INCONSISTENCY’ OF A SOCIAL NETWORK SAYING A USER OWNS CONTENT BUT THAT IT ALSO HAS THE ABILITY TO USE IT HAS NOT BEEN TESTED IN THE UK.”
Te most obvious would surround someone misusing a trademark. However, if they are targeted by a right holder, for example through a takedown notice, they have a platform to widely publicise any confrontation.
“Today, it is extremely easy for the recipient of an overreaching demand letter to publicise it widely and quickly,” says Stabbe.
But policing brand misuse can be a time- consuming task, and with this in mind, right holders are increasingly moving towards interacting more with their consumers.
Stabbe adds: “More than ever, trademark owners need to balance the damage to their brand with the possible adverse publicity that may result from taking action.
“In addition, trademark owners are increasingly using social media to try to create a connection with consumers and to create brand loyalty. As more and more companies have done so, it
Volume 3, Issue 2
has become much harder to stand out from the crowd and be effective.”
But unauthorised fan or tribute pages can
provide right owners with a dilemma. Ford says that depending on “how active” the unauthorised account may be, different responses would be required.
“True ‘fan pages’ are not problematic in many cases. However, even if a page has the best intentions, it
is still important to ensure that
the brand’s IP is not misused. As such, it can be very beneficial for brands to establish positive working relationships with these pages,” Ford says.
Te issue was raised in a case involving a fan- owned Ferrari page on Facebook that was set up six years ago by a 15-year-old called Sammy Wasem.
Wasem was contacted by Ferrari, which accused him of trademark infringement. Te carmaker eventually said it would make Wasem’s page official.
With his father, Wasem began working on updating and managing the page before Ferrari took away the pair’s administrator rights. Tey have since filed a lawsuit claiming compensation for unpaid work.
Earlier this year, WIPR, the sister magazine to TBO, covered a story involving a brand’s reaction when a young Manchester United fan was ordered to close his Twitter account by the club because his profile picture used its crest.
Te account, which tweeted the names of every player to play for the club, had just 100 followers.
Stabbe says brand owners need to think carefully before deciding whether to take action against fans.
“If the page was being used by a true fan of the brand, action by the trademark owner may result in far more damage in the form of bad publicity. When faced with such situations, the trademark owner must exercise good judgment in balancing potential costs and benefits from taking action or taking no action.”
It’s clear there are many issues for right holders to contend with on social media, such as ownership of a tweet or the protection of a status. With social media use rising rapidly, and a lack of case law to provide clarity for IP owners, this world is likely to continue as an untamed Wild West, for now at least.
www.trademarksandbrandsonline.com
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