By: Ahmad El-Gendi and Samantha Duran
Social media has dramatically changed the way companies brand and market themselves to the public. Companies of all sizes use social media as the primary line of communication to their customers and the general public. In recent years, savvy businesses have spent anywhere from hundreds to millions of dollars employing influencers (people who have a large social media following, aka social media famous) to influence their followers to purchase their respective companies’ products and services. With such a hefty investment, it is very important that companies protect the IP rights of their social media content and treat these influencer transactions as serious ones, especially considering the damage they can do to a brand with just one post if things don’t go smoothly between the parties.
First, companies can protect their brand by trademarking brand names, slogans, and logos before they are shared on social media. Companies can even trademark hashtags if they are unique slogans used to identify the brand. Trademark protection can either come from registering the trademark with the United States Patent and Trademark Office (USPTO), or from using the trademark in commerce. However, in the age of social media where content is posted and reposted there are distinct advantages to registering your trademark.
Registering a trademark provides notice to the public of the registrant’s claim of ownership over the trademark, a legal presumption of ownership nationwide, and the exclusive right to use the trademark in connection with the goods or services set forth in the registration. Many social media sites have online forms to report trademark infringement and providing proof of registration may be necessary to prove that the content is an infringement and must be taken down.
Also, Companies can protect their posts, including words and images, through the use of copyrights. Any original works of authorship fixed in a tangible medium of expression are automatically entitled to copyright protection from the moment they are created. In other words, once you post it, you can likely protect it (assuming it meets other requirements). However, actually registering the copyright is necessary to bring a lawsuit for infringement, and it may allow for statutory damages and attorneys’ fees in successful litigation.
Companies should also be careful not to infringe on the copyrights of others. Sharing any content that is not created by the company itself (like an innocent image you took from a Google search), or inducing others (including social media influencers) to do the same, can result in the company being liable for copyright infringement. Companies can share some copyrighted content through the fair use doctrine which allows for the use of copyrighted information for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. However, companies should use caution in relying on the fair use doctrine, as this can lead to an expensive lawsuit.
If you find someone has infringed on your company’s social media IP rights, sending a cease-and-desist or demand letter often solves the problem. However, companies should be sure to seek the assistance of an attorney in drafting these letters as they are often posted to social media, and a poorly drafted letter can lead to negative press for the brand. Social media went from an interesting trend to an integral business process. #ProtectYourBrand