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So You Want To See A Social Media Law Final? (2016 Edition)

Hamilton-Poster

Cower before my mad shop skillz.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law.  Having just submitted my grades today, I’m now pleased to share with you this year’s final exam.  I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months.  Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

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Oh Hey, Want To See A Great Social Media Law Final Answer?

Final-examsThis is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog.  I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer.  I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year.  Worth Carroll wrote the answer so all credit to him.  If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently?  When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well.  Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions.  Take a read after the break and see if you agree.

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So You Want To See A Social Media Law Final? (2015 Edition)

Readers who were smart enough not to attend law school (congrats on that!) may not realize that a law school final is serious business.  The vast majority of your classes during those three years will have you reading and discussing cases and listening to a professor for an entire semester; then you get one test and that’s your grade.  No repeats.  No making it up down the road.  One and done.  Scary stuff.

Readers of this (increasingly infrequent, sorry) blog also know that I teach a class on Social Media Law at the University of Texas School of Law.  This past year was the third time I offered the class and it’s always interesting to see the issues that have emerged from year to year or even during the year I’m teaching.  I also spend a lot of time thinking about the final, both because I want it to be interested and because I want the students to have ample opportunity to show what they’ve learned over the entire semester.

Below is the final from my 2015 class.  (Here’s the final from last year and here’s the final from 2013 if you’re curious.)  I wanted to post it now to give you some time to think about it (or discuss in the comments).  Later I’ll post what ended up being the top grade in the class’ answer (yes, I asked for and received permission to post it).

Before I get into the text of the final, let me thank the inspiration for elements of these questions: my work SMaC team for pulling social media lessons from the movie Chef, the movie Real Genius, my youngest son Isaac who thinks “Poo-poo” is the funniest word ever (he’s not wrong), and many real world examples that I tweaked for this exam.

And now, the final exam:

QUESTION ONE

Fresh out of law school and after passing your Bar exam, you are quickly snapped up by a hot new company called Pop-Up Pop-Ups (PU2).  PU2 has a unique business model where they partner with other companies to create mobile marketing experiences.  In the past, PU2 has worked with a volleyball company to hold an impromptu volleyball tournament in the middle of a city block.  PU2 has also worked with fashion companies to hold flash mob style runway shows in unexpected locations such as rooftops and swimming pools.  PU2 prides itself in organizing events that shock its audience and get people talking.

PU2 picks the locations for its events by identifying certain key social media users and targeting an experience around this individual, hoping that the individual will then be the origin for a cascade of social media posts that gets the word out about the event.

The CEO of PU2, Mr. Knowslittle, lets his staff handle the social media elements of the business.  This past year he saw the movies Chef and Catfish and now thinks social media might be a risky area for him but he knows his team relies on social media to conduct their business.  He has asked you to advise him on any practical or legal risks his business might face due to social media and to put them in perspective with the potential benefits his company could receive.  Since he has never used any social media platforms but really enjoyed the movies Chef and Catfish, he would like you to use examples from these movies to help illustrate your points.

Compose an email to your CEO advising him about his company’s social media risks and potential rewards.

QUESTION TWO

PU2’s latest marketing stunt involved building a giant pyramid in Times Square.  An actor wearing sun-god robes stood on the top of the pyramid while a hundred other actors stood at the base of the pyramid and threw little pickles at the sun-god.  Your CEO is unclear what this event was supposed to promote but it did receive a lot of attention on social media.

During the event, the well-known action movie star Arnold Schwarzeblecher (“Arnie” for short), was filming Total Recall 2: Totaller Recall nearby.  Seeing all the commotion, he came to Times Square and proceeded to take part in the event.  He laughed, he cried, he said it was better than Cats as he stood and threw little pickles.  Several bystanders saw Arnie participating in the event and they all took pictures and videos and posted their content to social media.

When Arnie returned to his trailer he had several urgent messages from his public relations team.  They saw all the posted content and, even worse, so did a number of entertainment websites who are now running articles that Arnie is working with PU2 to promote…whatever the pickle throwing event was supposed to promote.

Arnie’s team is demanding you pull down all content using Arnie’s image.  Your CEO, Mr. Knowslittle, has received some of these demands as well.  Not only does he want to keep the content up but he’d also like to start posting some of these pictures and videos directly from all PU2 social media accounts (“Whatever those are,” he says, because he still doesn’t really get it).

Compose an email to your CEO addressing the demands from Arnie’s public relations team as well as Mr. Knowslittle’s desire to post this content from PU2 accounts.

QUESTION THREE

Your CEO, Mr. Knowslittle, has sent the head of Human Resources to speak to you about an employee matter.  The Marketing Department had extended an offer to a new Event Manager, Helen Clueless, a week ago.  Helen accepted the offer almost immediately and the team had been thrilled to bring in their newest team mate.

Some of Helen’s strengths which carried her through the interview process were her extensive social media skills and ability to build online communities.  She had built her personal brand on Twitter and had an account with over 20,000 followers at the time of her interviews.  The hiring manager, unsure of how to handle Helen’s Twitter account during the interview, was especially careful not to read the content of Helen’s tweets and ensured that everyone involved in the hiring process did the same.

After the Times Square pickle throwing, Helen tweeted out several messages that are highly critical of PU2.  Some examples include:

  • I cannot believe I’m starting a job next week with this company. #picklethrowing
  • Sure, the job pays well, but am I going to work on stupid events like this for the rest of my life? #picklethrowing #worstjobever
  • Please, Twitterverse, find me a job before I start working for these morons. #picklethrowing #willworkfortweets
  • Just wish my last gig hadn’t fired me for that drug bust. #justpot #legalizeit

The last tweet caught the attention of HR in particular and they then reviewed the content of her Twitter account.  They discovered dozens of tweets referencing drug use and other behaviors that are clear violations of your Code of Conduct.

To make matters worse, now other people are starting to reply to Helen’s tweets and including PU2, asking your company if they really hired someone who is just going to insult her employer before she even starts her job.  HR would like to know what options they have regarding Helen.

Compose an email to your head of HR and CEO advising them on what they can do about Helen and if there is anything they should change in their hiring practices to mitigate this risk in the future.

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My Awesome Announcement

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career.  Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books.  (Go with me, people.)  For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic.  They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas.  Nutshells get right to the point and provide essential information on the overall legal topic.  I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section.  Can you spot it?

Can you spot what's missing?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic.  My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom.  His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now.  There isn’t a wealth of case law on social media issues, but there are certainly cases out there.  In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t.  Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me.  He’s just a more talented and better looking version of me who can also sing and dance and has a better accent.  The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest.  Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts.  When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering.  I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value.  To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way.  An even bigger thanks to my family for putting up with my little side projects.

Now, if you’ll excuse me, I’ve got some writing to do.

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Wish I Was Legal

It’s a movie.

I’m a social media law geek.  I have long accepted this fact and it shouldn’t be a revelation to you since you’re, you know, reading a blog about social media law.  So nobody should be surprised that when I attended a movie premiere for Wish I Was Here last week and everyone took out their smartphones to take pictures of Zach Braff and Donald Faison I, instead, took pictures of the disclosure form and privacy warning.  Because I’m geek like that.

I was a backer of Mr Braff’s Kickstarter campaign and paid to get two tickets to the Austin premiere and Q&A session.  I am not a superfan of Mr. Braff–I thought Garden State was okay and I only watched a season or two of Scrubs–but I do think he’s a talented actor and saw him perform in Twelfth Night at Shakespeare in the Park.  I was also intrigued by the Kickstarter project, being the first high publicity original movie to be funded after Veronica Mars.  I sent my money, read the updates, and watched the backlash roll in with curiousity.

There were four items of interest that struck me regarding social media law at the movie premiere.  I’m going to tell you three of them.  Just kidding, here’s all four.

photo 11. The release form

I’ve enclosed a picture of the consent and release form that all attendees were required to sign prior to entering the theater.  Much of it is standard for a movie screening where filming will take place if they may use the footage for behind the scenes featurettes.  But the item that jumped out to me is the item IN BOLD ALL CAPS.  Because, you know, that’s what bold all caps is supposed to do.

That text reads

I agree that to the extent I make any statements about the content including via social media or other public forums (e.g. Facebook, Twitter, Blogs, etc.) that such statements (“Statements”)…IF THE STATEMENT IS MADE ON SOCIAL MEDIA OR ANOTHER PUBLIC ON-LINE FORUM, I WILL DISCLOSE NEXT TO MY STATEMENT(S) THE MATERIAL CONNECTION BETWEEN MYSELF AND FOCUS FEATURES (I.E. I SAW THE PICTURE FOR FREE AT AN ADVANCE SCREENING

This statement is for participants to comply with the FTC Endorsement Guidelines.  They’re even explicitly called out in the next sentence of the release but they aren’t IN BOLD ALL CAPS so you might have missed it.

That’s a great call-out for such a long release form.  It may be the only sentence you actually read if you’re handed this page and given a minute to sign before getting out of the hot Texas sun into the air conditioned theater.  Although I may quibble with some technicalities (I paid for the tickets via Kickstarter so it wasn’t free, and I paid Zach Braff’s group not Focus) I’m a professional quibbler so I’m willing to focus on the positive.  A good call-out for a venture they know will get mentioned on social media.

photo 22. The consent sign

This sign was posted inside the theater before you could get to the orchestra seating and visible from the stairs leading to the balcony.  While I understand the need for something like this, heck I’ve drafted a few in my career, I also think this sign goes a bit overboard.  First, the release was already in the signed form that everyone had to fill out before they got inside so this is duplicative at best–but as a lawyer I can appreciate having multiple points where consent was gained just in case a lawsuit comes up (especially after DVDs have been produced).

I take less issue with the repetition than I do with the scope–while the signed form seems more targeted in the consent, this poster goes a bit overboard.  Sure, it’s easier to print a sign with less language like YOU GIVE ME ALL THE RIGHTS! RAWR! it also goes beyond the scope of the event.  According to this sign, Focus Features can now use my photograph to publicize an entirely different movie or event and that doesn’t help anyone.

I don’t think Focus would use my photo to publicize a different movie, mostly because I thoroughly enjoyed Reign of Fire and therefore have horrible taste in movies, but also because this is more likely just a defensive consent.  If someone were to sue for being on the DVD then the company has a signed release form and this poster to use in their defense.

Still, even though I may be the only person who read this sign (and definitely the only one to take a picture of it), I have to wonder what would happen if someone took issue with the consent.  I paid for the tickets to the premiere–that’s what the Kickstarter event promised me.  There is some general language in the Kickstarter campaign that if a reward conflicts with laws they’ll work to give you a substitute, but it isn’t a conflict of law for me to attend without giving consent to filming.  Just a small thought–perhaps they had a special area reserved for non-consenting audience members or they figured the odds were so low of this being an issue it wasn’t worth developing a plan.  I just find that kind of thing interesting.

3. The backlash

During the Q&A session after the film, one man asked Mr. Braff if he experienced any backlash over the funding.  The response was along the lines of “Where have you been?  Did you contribute and then go off-line for a year?  Did you just land from the space station and thought, ‘Hey, I can still make the premiere!'”  It was funny and the audience’s reaction showed they were all aware of the backlash as well.

The answer was interesting as well.  Mr. Braff explained how his world is all about getting films financed and when something is your world you unrealistically expect that other people will know something about that world.  So when the backlash started rolling in about the Kickstarter project he suddenly realized that people didn’t really understand how films are financed and why Kickstarter could help him.  So that was a lesson learned, but ultimately something he wasn’t concerned about since his fans and other interested parties did back him and that mattered more.

Mr. Braff did express some concern over the backlash regarding Kickstarter itself–specifically that people attacked him for taking money away from other Kickstarter projects that could use the money more.  He said that Kickstarter was quiet at first but later spoke up saying that high publicity projects like this do draw attention to the platform and ultimately bring in new users who end up funding more projects–the net being more money shared with more projects.  I can’t find a link to Kickstarter’s statement but that makes sense and is also probably a lesson learned for future high publicity projects.

4. Reflecting on the social world

At the end of the Q&A session, Mr. Braff and Mr. Faison sang “Guy Love” as a special treat to the audience.  They said it had been a while since they performed it and don’t get a lot of opportunities to sing it together so everyone should record it.  And so they did.  This was my view of the song:

photo

Working in social media I often take for granted the world of information and connections we have at our fingertips.  But every once in a while it strikes home.  When I looked at the event before my eyes I wasn’t watching the stage, I was looking at all those phones.  Yes, in my head I realized everyone probably has one, but it takes events like these for that to sink in sometime.  Seeing everyone recording the event, having their own perspective and building their own memories and being able to share it with all of their friends as well.

That’s awesome.  That’s social media.

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Social Media Law Final (You Know You’re Curious)

Because triumph.

While I enjoy many aspects of being a social media lawyer one of my absolute favorites is teaching a class I developed at the University of Texas School of Law.  This spring I taught the class for a second time to an even larger class and had many entertaining classes and conversations throughout the year.  We even had to deal with actual ice cancellations and fake ice cancellations and held one class virtually over Adobe Connect.  All in all, a fun semester.

Since my class covers a variety of legal subjects impacted by social media, the final also covers a number of different topics.  And just like last year when I posted the first law school exam I gave, below is an embed of this year’s final.  Now you can play along and imagine what you would respond if you had to take this final.  I omitted the first page which was just directions–just know it was open book and students had three hours to take the exam.  Each question was weighed equally.

Oh, and there’s a social media easter egg hidden in the final.  Let me know if you find it.

Update: Jason Ross found the easter egg first, so congrats to him!  Yes, I rickrolled my students, they just didn’t realize it.  Read the first letter of each line of the final.

 

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My Keynote: Seven Stories of Social Media Legal Risk

This.

You always remember your first keynote.  So I’ve been told.  And so far, that’s true.  I’ve spoken at conferences, chaired conferences, led panels and participated on them.  I’ve taught one-off classes and an ongoing Law and Social Media class at the University of Texas School of Law.  But this past January was a big milestone for me as I was invited to deliver the keynote address at the Charleston Law Review’s annual symposium.  The year before, their keynote speaker was retired Supreme Court Justice Sandra Day O’Connor.  I figured she was an acceptable opening act for me.

It actually took me a while to decide what to speak about–there are so many great subjects within social media and the law (hence this blog).  So I cheated a bit and instead of picking one topic I picked seven.  Actually a bit more than seven but I organized these subjects around seven stories of social media legal risk.

The symposium was fantastic.  A great venue in the Charleston Music Hall (I’ve never spoken in a room with a balcony except my own living room and that’s mostly to tell my boys to come downstairs).  And a great schedule with four other panels dealing with social media and the law, but not marketing–typically the majority of social media law talk is about marketing.  It was refreshing to see a symposium with panels on employment issues, your digital afterlife (what happens to your accounts after you die), privacy, and legal ethics.  Fantastic speakers, materials, and very well organized.  Total package.

Charleston Law Review ended up posting the video of my keynote.  I’ve embedded the YouTube video of my keynote below in case you have 55 minutes or so to kill and want to fill it with some fun social media stories. And below that is an embed of my slides because I use slides a lot but you can’t see them in the video. So you’ll just have to click along yourself to see all the fun.

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