WITH THE DEADLINE FOR SUBMITTING THIS ARTICLE LOOMING AHEAD OF ME, I DID WHAT MOST MEMBERS OF MY GENERATION DO WHEN FACED WITH LIMITED TIME AND SIGNIFICANT WORK AHEAD OF THEM: I WENT ONLINE. I CHECKED OUT INSTAGRAM, READ SOME STORIES ON SNAPCHAT AND BROWSED FACEBOOK. DURING MY HOUR OF “SOCIALIZATION” I LEARNED THAT A FRIEND OF MINE COMPLETED HER FIRST TRIATHLON, A WORK ACQUAINTANCE WAS SINGING THE PRAISES OF A TITLE COMPANY THAT HAD CLOSED A VERY COM- PLICATED DEAL SHE PUT TOGETHER, AND TWO PEO- PLE I FOLLOW WERE WARNING ME NOT TO OPEN E-MAILS OR ACCEPT NEW FRIEND REQUESTS FROM THEM AS THEY HAD BEEN HACKED. HOW APPRO- PRIATE THAT I WOULD BE WRITING AN ARTICLE ON LEGAL ISSUES AND RISKS ARISING FROM SO- CIAL MEDIA AND TECHNOLOGY WHEN SO MANY OF THOSE ISSUES EXIST IN MY SOCIAL MEDIA FEED.
you may not be plagiarizing the work, but you are infringing on the copyright. It is important that real estate brokerages and agents take steps to prevent intellectual property infringement in establish- ing their online presence. This means adopting policies and procedures addressing licensing materials obtained from a third party before posting them and clarifying who owns material created by an agent during their affiliation with a brokerage.
Endorsements, Testimonials and Online Reviews
Intellectual Property Infringement
My friend who completed her first triathlon proudly posted pictures of herself taken along the race course. In each picture the grimacing face of my friend is visible behind the watermarked logo of the official race photographer. These pictures are no dif- ferent than the ones that show up daily in our social media feeds, school pictures of our children, wedding photos of our friends, and if you’re involved in real estate, lots of pictures of properties for sale. The internet has made it easier and faster to document every aspect of our lives and the lives of those around us, and to do so in beautiful (if slightly filtered) pictures. The risk that exists with sharing those pictures is that we may
be infringing on the intellectual property rights of another. Vir- tually every original work that is ultimately fixed in a tangible medium of expression is eligible for copyright protection, and in most cases, copyright protection is instantaneous upon fix- ation. Everything from a novel to a text message can be subject to copyright protection. Copyright vests in the author many rights including: {1} Making and distributing copies, {2} Making derivative works, {3} Making public performances and display, {4} Licensing the use of the work by another. The pictures taken by the photographer at the triathlon were subject to copyright protection with the photographer own- ing the rights. When my friend posted the pictures online, she was making and distributing copies without having ob- tained the proper license and was infringing on the rights of the photographer. While the photographer had taken the step of watermarking the picture and including a copyright mark, he wasn’t required to; registration and marking of copy- righted materials is not required in the United States. Giving attribution to the author of the protected work does not relieve the person posting the material from liability for infringement,
www.garealtor.com
“Yes! Best closing ever at @DriverTitleCo! I wouldn’t trust anybody else for this complicated deal! #awesomeservice #blessed” My contact who took to Twitter to post how pleased she was with the service provided by a title company was pro- viding what would most likely be viewed as a testimonial or endorsement. In fewer than 140 characters, you can get in quite a bit of trouble. The Federal Trade Commission regulates the use of testi- monials and endorsements in advertising. The FTC guide- lines on the use of testimonials and endorsements states that:
“Endorsements must be truthful and not misleading. If the advertiser doesn’t have proof that the endorser’s
experience represents what consumers will achieve by using the product, the ad must clearly and conspicu- ously disclose the generally expected results in the depicted circumstances, and if there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorse- ment, it should be disclosed.
”
If we focus on the second portion “connection between the endorser and the marketer” we need to look at the relationship between my contact and the title company that she’s endors- ing. If my contact owns part of the company, is related to an employee or received payment or a gift in exchange for her tweet, that connection could certainly change how most peo- ple would evaluate the endorsement. To disclose the relation- ship in such a limited space, the easiest approach is to add #ad or #sponsored to the tweet. We also must be aware of the po- tential for aRESPA violation if we are receiving “something of value” for the referral of a settlement service. If my friend was receiving payment for her positive tweets and those tweets included recommendations for use of the service and were read by her clients who are her followers, it could be a serious red flag for a potential violation.
“Groan … my fax machine just spit out a home inspection from Philip Driver. What kind of dinosaur
still sends faxes? Reading this inspection, the GEORGIA REALTOR® I 23
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