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

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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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YES PLeaSe: A Legal Guide To Periscope And Meerkat

meerkat-vs-periscopeFor the first time in several years we have some significant new entries to the social media application world in the form of Meerkat and Periscope.  Both of these applications allow users to quickly and easily provide Personal Live Streaming (PLS), meaning they can start shooting video and instantly sharing it on social media.  No shooting video and uploading to YouTube/Instagram/Vine, this is an ongoing live stream complete with user interaction.  In all likelihood this is a function that other platforms can provide as well, especially as our handheld technology continues to grow in processing power and our wireless bandwidth continues to grow.  But for now these are two significant players in an emerging space that come with some intriguing legal issues.

After experimenting with the two applications, including an hour-long live cast of my podcast (all about geek culture, if you’re interested you can check out the podcast on iTunes or our website) I put together this quick look at some of the high level legal concerns for brands and organizations who are thinking about getting involved with PLS.  Is it too much to say as brands develop a Go-To-Meerkat strategy?  It is?  Sorry.

Because I’m a lawyer there are, of course, three main risks to be concerned about.  And, oh, how convenient, they spell out YES so we can make a great blog post title.  Those three concerns are YouTube+/-Engagement, and Saved Streams.  Okay, I guess technically that would spell YESS but that sounds reptilian and I’m trying to avoid that easy lawyer joke.  So YES it is.

Because professional courtesy.

Because professional courtesy.

Also please know this is a highly dynamic area.  Meerkat was first to market but Twitter had already acquired Periscope and was preparing its own launch while Meerkat was getting tons of press at SXSW.  So Twitter cut off some important access to Meerkat (both apps use Twitter for crucial functions).  This kind of activity may continue for others that try to create a similar service on the backbone of an existing one, and we’re sure to see completely independent services start up that tout their protection from such antics.  But in a new field with this much attention we are bound to see significant moves in functionality and usage over the next several months, so stay tuned for additional posts on the subjects.

YouTube+/-

Personal Live Streaming is a video stream and so it carries most of the same legal concerns as any video content an organization would post on YouTube.  But the live component of PLS makes for some interesting additions and subtractions to your standard legal analysis of video content.

On the plus side, or additional analysis you should do, you will need to consider the environment in which the stream will be recorded.  Since these streams go out live you will not be able to review them for their content prior to publication.  That video your marketing team did with that catchy, unlicensed Top 40 hit?  Yeah, you can review that before it goes on YouTube so that Marvin Gaye’s estate doesn’t sue you for $7 million but you can’t review it before it streams.  So the environment and context of the video stream should be considered for any legal threats with the team putting the stream together–you won’t get a chance to fix it later.  Consider copyrights, trademarks, privacy concerns, licensing issues, and please at least briefly discuss defamation law with your on-screen talent/broadcaster.

On the minus side, or some mitigating factors that YouTube doesn’t traditionally have, these streams are not intended to be permanent.  Risky activity could be mitigated by the fact that the videos are generally only visible while they are being created (except see our third part, Saved Streams, below).  If someone on camera says “Top Hollywood Celebrity explicitly endorses Company Product!” during a live stream, hopefully the live and non-recorded nature of the film could mitigate any potential rights of publicity claims (or at least damages).  By the way, don’t invite that streambomber to your next livestreams.

Unless it's a dolphin.  Dolphins can photobomb or streambomb all they want.  It's the law.

Unless it’s a dolphin. Dolphins can photobomb or streambomb all they want. It’s the law.

Engagement

Both apps provide similar ways to engage with stream watchers.  Stream watchers can like a stream or send a comment to the broadcaster and those watching.  Both apps also have no moderation abilities at this point–so if someone starts spamming your video broadcast with explicit text or spam there is nothing you can do.

One crucial way in how the apps differ on engagement is the comments.  Meerkat comments are sent via Twitter–they are sent as Twitter replies to the original tweet announcing the Meerkat broadcast.  This can be both good and bad in terms of monitoring and recording the comments and in who can see the posted comments.  Periscope comments are limited to the video stream itself, also with its own benefits and drawbacks.  One consideration organizations should make when using PLS is whether they will have an individual conduct the streams or a small team.  The single user and video shooter can be very effective and personal, but it can also be difficult to engage an audience based on personal content (a speech, a demonstration, etc.).  Having one person operating the camera (well, phone/tablet camera) while another is being filmed will help to monitor video issues and comments, or you may even want to separate the duties between people to operate the camera and another to watch the comments.  There’s no right answer, it’s just something to think through.

Unless you have one of these.  Because now you have extra fingers to use and you are awesome.

Unless you have one of these. Because now you have extra fingers to use and you are awesome.

Saved Streams

PLS is mostly about current video but both apps have some replay abilities that may bring legal risks or make you consider which application your organization may conduct its own experiments.  Meerkat streams are public and they had to issue a quick fix recently to prevent anyone from hijacking another user’s stream.  That security issue aside, Meerkat faces another legal risk in terms of recorded sessions.  Meerkat gives broadcasters the option to save the video to their phone/tablet at the end of the session but there is already a service that will allow any user participating in a Meerkat stream to send out a single hashtag that will record the stream and then post it to YouTube.

The idea that some third party can record and post your stream even if you yourself do not feels quite risky depending on the content that is being sent out.  In many ways this is no different than a user sending a photo on Snapchat that will be deleted but the recipient uses their phone’s operating system to take a screen capture of the image.  But if your organization doesn’t use Snapchat to send out photos then that may not be an analysis you’ve done.  So it’s something to consider.

Pictured: extensive legal analysis.

Pictured: extensive legal analysis.

Periscope, on the other hand, does not currently have a way for third parties to easily record your stream and post it (although there could certainly be a way to record video sent to watcher’s phones/tablets/computers).  The app will, however, allow you to upload the video to Periscope’s servers and allow other users to watch or re-watch the stream for a period after it was filmed.  That at least gives the broadcaster some control over how long the video will live but is also something that should be considered.

 

It’s exciting to see a new function and communities spring up in the social universe.  We haven’t had a significant new step like this since Pinterest many years ago.  Whether this remains a thriving independent community or more of a feature that everyone will enable (like checking in from a few years ago) remains to be seen.

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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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