Friday, June 25, 2010

Social Media Barriers, Benefits and Bombshells

I’ve given my “SOCIAL MEDIA Barriers, Benefits and Bombshells” talk quite a lot lately. In light of this, I’ve decided to simply post it here.

This talk usually lasts about an hour, so read this post s-l-o-w-l-y.

Also, the talk is punctuated by cartoons of my own creation. So laugh heartily every 5 minutes or so.

First slide: Title.

Second slide: “But First”: The big points: (1) With nearly limitless boundaries, social media gives consumers unprecedented engagement with the brand; (2) historically this engagement was controlled by the brand owners, but social media has changed that, giving consumers even-increasing control over how a brand is perceived; (3) smart and forward-looking companies are adopting social media policies in light of this; (4) every company should develop a social media plan; (5) the basic rules of the road are: engage, participate, influence and monitor.

Third: The Road Map. What we’re going to talk about: what is Social Media; barriers; benefits; bombshells (e.g. issue spotting); creating a policy.

Fourth: Social Media. Everyone thinks of Facebook, LinkedIn, Twitter, MySpace, and YouTube, but there are actually thousands of social media sites including blogs, Google Groups, Chatroulette, haul sites, review sites, etc.

Fifth: Facts and Opinions. Because it is so inexpensive and accessible, social medial enables anyone to publish, provides a fast, scalable and cost-efficient way of connecting worldwide. But this global conversation can cut both ways: marketing goldmine and minefield of liability. Participation in social media sites now accounts for 11 percent of all time spent online in the US.

Sixth: Useless (But Interesting) Statistics. Facebook has 400 Million users (at 350million it would have constituted the 4th largest country in the world); LinkedIn has 60 Million users, but just announced its IPO (with a pre-money valuation of $1.3 billion); Twitter has 105 million registered users; 50 million tweets/day; Yelp (a great place to gripe!) has 30+ million visitors a month; YouTube is the 6th largest site on the Internet, with 71 million unique users per day (meaning that more people watch its content on a daily basis than they do network and cable TV combined). Add to all of this more than 200,000,000 blogs, and you get the “tip” of the social media “iceberg.”

Seventh: Barriers. First hilarious cartoon, but other than that, not much. There are no barriers, so move along.

Eighth: Benefits. Next cartoon (more belly laughs), and a list of the benefits. Basically, psychological research shows that feelings of connection to other people lead to longer, healthier, happier lives. Also, employees seem to like the ability to use it while at work, and a recent Wired article suggests that it makes them happier and more productive. Add to this, the ability to build brand awareness, monitor what customers are saying, respond to their needs, wants and comments. All in all, social media = good. Next slide, please.

Ninth through Twenty-Ninth: Bombshells: Cartoon and parade of horribles. Copyright infringement, trademark infringement, disclosure of trade secrets, SEC violations, defamation and business, libel, not to mention the various employment-centric pitfalls. It’s a wonder anyone uses social media without being sued.

Also: How to keep from being sued in light of the bombshells – Don’t engage in copyright infringement, trademark infringement, disclosure of trade secrets, SEC violations, defamation and business, libel, or the various employment-centric pitfalls. It’s a wonder anyone uses social media and gets sued.

Thirtieth Slide: Funny cartoon and “Embrace it.” This slide suggest that social media isn’t going away, so you need to engage it using all levels of your organization. This means, first and foremost, and in all seriousness, having a social media policy.

Next slide (who’s counting?): The Social Media Policy. There is no one-side fits all, but this should include:

• Employees cannot do anything online that they cannot do offline

• Personal use of SM cannot interfere with work. No different than reading magazines all day.

• Employees should use common sense about what they post.

• Employees identify themselves and must not purport to be posting on behalf
of the company.

• If employees make personal comments about any aspect of the organization’s business, their profiles must carry a disclaimer that the views expressed are their own, and not the organizations.

• Posts may not contain confidential or proprietary information of the company or third parties.

• Any use of the organization’s name, trademarks, logos or other intellectual property must be approved.

• Employees must get company approval to use SM to conduct business.

• Delineate privacy rights…no expectation of privacy while at work.

• Posts should not violate any federal or state laws.

• Posts should not harass or attack anyone, especially based on inclusion in protected category.

• Posts should not violate any other applicable policy of the Company.

Which slide are we on?: Rolling out the policy: Be fair. Explain it clearly. Have it apply to all, from CEO to the person who waters the plants.

Final slide: Remember that the FTC passed new guidelines in 2009 that create possible liability for those who make endorsements and testimonials, and for the companies on whose behalf these are made. Social media is a tool that should be used wisely. Being wise starts with having a policy. So go, now – yes now – and work on getting a policy in place.

That’s it. Show’s over. Back to work.

Jonathan Pink is an intellectual property and business litigator resident in the Irvine (Orange County) office of Bryan Cave, LLP. He is Chair of the firm’s Internet and New Media Team, and a really funny cartoonist. He can be reached at 949-223-7173 or at

Tuesday, June 8, 2010

Something to Chat About – Are Letters and Conversations Protected by Copyright?

I admit, I can never keep straight these categories of potential copyright protection. Ok, for the record, and so that I have something to look back at the next time I’m feeling utterly confused on the topic, here it is for once and for all (um, or at least until some higher court says otherwise).

Letters, lectures, speeches are all protected by copyright. See e.g. Salinger v. Random House, Inc., 811 F.2d 90, 94-95 (2d Cir. 1987) (author of letter owns the copyright in its contents, while the recipient of the letter retains ownership over the physical document); Jackson v. MPI Home Video, 694 f. Supp. 483 (N.D. Ill 1988) (Jesse Jackson’s speech at the 1988 Democratic Party Convention found protectable as a literary work).

Now what about simple conversations? Well, there my friends, I’m afraid the law is unclear. A conversation is considered something different from a lecture, which is generally written prior to its delivery. That is, just think of a politician at the podium absent a carefully crafted speech. Most of them would be as dumbfounded as say Dan Quayle or George Bush (Version II). I’m not counting Obama in this, of course. The man is a master orator. He’s also refreshingly intelligent.

In any event, the trend appears to be that conversations are not protected by copyright except in extraordinary circumstances. Like when, you ask? Well, the classic conversation case is Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 296 N.Y.s. 2d 771 244 N.E. 2d 250 (1969). In that case, the NY Court of Appeal stated that while there is a presumption that conversations are not copyrightable subject matter, there may be limited an special circumstances where that presumption may be overcome. Specifically, the court said that where the speaker indicates that he/she intends to mark off the utterance at issue from his/her ordinary stream of speech, and further indicates that he/she wishes to exercise control of the statement’s publication. Uh-huh, that happens all the time.

Other courts have taken a more narrow view of things (as if this were possible). See e.g. Falwell v. Penthouse International, Ltd., 521 F. Supp. 1204. 1207-1208 (W.D. Va. 1981) (“Plaintiff’s claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures all of whom may argue that their expressions should also be afforded the extraordinary protection of copyright. Such a result . . . would run counter to the firmly established constitutional guarantees of freedom of speech and of the press.”) E.g., a judicially delivered body slam with the implicit message: no!

So now that we’ve gotten this straight, we return to something important: a hot cup of coffee and looking for food in the office fridge.

Jonathan Pink litigates copyright, trademark and patent infringement cases in courts throughout the country. He also handles business litigation disputes and occasionally publishes cartoons worthy of the New Yorker (if only the New Yorker would agree). He can be reached at 949-223-7173.

Friday, June 4, 2010

Something to Yelp About!

I have broken one of my own rules of blogging: e.g. to post often and with some regularity. Fortunately, my other rule is don't sweat rule No. One. After all, blogging is great, but life is short and there are plenty of other things to get done.

Which brings me to nearly pointless point No. Two: I'm writing this on my BBerry, while attending my child's elementary school, Spring Concert. (The budding cellist has already left the stage, so I'm keeping my priorities straight.) Just like the fact that I'm drafting on the BBerry. Ain't modern conveniences grand?

Ah, so much to talk about since last we chatted -- so little screen. Also, alas, I don't have my research at my side, so my usual useless drivel will be a little less useful with this post. So bear with me (and just remember: you're not paying for this, so you get ... Well, you get the idea).

The main point of this ramble is simply this: I have seen a significant uptick in lawsuits filed by disgruntled service providers and assorted business entities who are peeved by comments made about them on review sites such as Yelp! Interesting because, well, these companies are lashing back at those who have lashed out.

Is this legally acceptable? Sure. If the first lasher engaged in any unlawful conduct, such as defaming the second lasher (the lash-backer?) then a claim by the latter would be fair play. Brief Internet primer: the same rules of the road apply even if the highway has changed.

Now, will some companies try to silence legitimate speech by filing meritless claims? Oh please. No, that would never happen ... everyday. So, this is simply to be expected. The take-away? Post, gripe, complain, kvetch, but don't defame. Got that?

This is all of particular interest to me as I posted a complaint on Yelp just this week. I will never go back to Great Clips in Irvine again! Will the loss of my business hurt them one bit? No, plenty of people will continue to have their hair butchered there because it is cheap (and not worth a penny more), bit it sure felt good to lay into them on Yelp.

Ok. That's it for now. Shuffle some papers so the boss thinks you're working!

Jonathan Pink is an intellectual property and commercial litigation attorney resident in Orange County, California. He specializes in copyright, trademark, patent and business disputes (including claims arising out of alleged defamation on the Internet). He can be reached at 949-223-7173.