Tag Archives: Copyright

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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Filed under Celebrities, Commercial Activity, Consumer Protection, CopyFUD, Copyright, Email, Employment, Facebook, Fair Use, First Amendment, FTC Endorsement Guidelines, Google, Identity, Informal Tone, Instagram, Laws, Personal Live Streaming, Privacy, Social Content, Social Marketing, Social Media and the Law, Social Media Policies, Social Media Risks, Social Platforms, Social Tracking, Terms and Conditions, Trademark, Twitter

Of Course People Understand Trademarks

tmYesterday, Hank Green (@hankgreen) of YouTube vlogbrothers fame, published a post on Medium named The Trouble with Trademarks.  I think it needed to be addressed so I did so in a Hank Green-style video (except it’s too long–I am a lawyer after all).  Please enjoy.  Or don’t.  Totally up to you.

 

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7 Signs Of A Bogus Facebook Privacy Change Post (and why your status update has no impact on Facebook)

facebook_privacy_comic_brian_farringtonEvery September it emerges like a cloud of locusts but far more annoying.  The posts.

Facebook has changed its privacy policy and is going to start charging you tomorrow unless you post the following UCC provisions and use some really strong words to say you DO NOT ALLOW THIS!  It might help if you stomp your foot too.  And you have to copy and paste this, for no good reason other than its funny as hell that people believe this nonsense.

It’s a hoax.  A chain mail joke.  And every year it flies around because people don’t remember it from the year before.  I tried blogging about detecting these hoaxes almost three years ago and the same points hold true.  This year even Facebook got in on the action by publicly telling people it was fake.

facebook

But I decided to make it easier for people to detect these hoaxes with the following list of bogus nonsense that can help you find the next Facebook hoax.  Some of this is a bit of tough love if you’ve been one of the people spreading this rumor–but it’s time for you to put your thinking hat on.  Yes, even while using social media.

The next hoax may take a different form or say it’s for some other reason, so I’m giving you all the ammunition you need to find and kill hoax posts.

1. It asks you to copy and paste something into your status update.

Look, I know your status update is really important to you as a Facebook user.  It’s where we tell people about how much fun we’re having and the great deal we got on something and how we’re really, really tired.  But it isn’t a Magical Contract Box.  You don’t get to put text in it and have that conjure some mystical legal impact like changing your terms with Facebook (check reason number 6) or giving yourself some extra degree of privacy (check reason number 5 below) or avoiding some bogus charge (check reason number 4).  That’s not how Facebook works, that’s not how contracts work, that’s not how life works.

2. It cites some source of information without a link.

You are a sophisticated Facebook user once you’ve been using the platform for more than a day.  So you know how easy it is to link an article, a video, a picture, or many other forms of information.  If a status update starts off by citing some source of information like a Channel 13 or WXYZ or some newspaper you’ve never heard of and it doesn’t contain a link to that original information then I want you to use some critical thinking skills.  “Are they not linking this information because it’s common knowledge or because it doesn’t exist?” I want you to ask yourself.  And then I want you to realize that you have no idea who Channel 13 is and why should you trust them.  And then I want you to ignore the status update.

3. It pretends to be legal by mentioning the UCC or Statute of Rome or some such nonsense.

Look, I get that the legal system can be a bit mysterious because lawyers want to keep a reason for suffering through law school for three years.  So part of this is on us–you don’t know what the UCC is except now I’m going to tell you.  The UCC isn’t a law.  It’s a code that is recommended to states to make a law and have it be common across all states (the U stands for Uniform).  But it isn’t a law.  So any status update that cites the UCC like it’s a law?  Immediately bogus.  Also if you see something that vaguely sounds like a law, like the Statute of Rome, think to yourself “Do I live in Rome?”  If you do, I want you to get on your scooter and go drive around a bit.  If you don’t, I want you to ignore the status update.

4. It says Facebook is about to start charging you.

I’m not saying that Facebook will always be free–that’s up to Facebook.  They said they are always going to be free (see that post at the top) but they could change their mind.  But even if they did change their mind, let’s think about it for a second–if Facebook were going to start charging its 1 billion plus users do you think you would find out about it the day before it happens?  And do you think you would find out about it from a status update?  An unsourced status update with no link that likely comes from one of your friends who, let’s face it, don’t post any technology news ever?  Nope.  If Facebook were going to start charging everyone you can be sure every news outlet would cover it and Facebook would be getting ahead of the message by alerting every user the moment you logged onto Facebook.

5. It tries to use anything but the Privacy settings to, you know, impact your Privacy settings.

Facebook has an incredibly robust Privacy settings page.  It’s grown over the years, partially as a reaction to users asking for more Privacy settings.  But while you can access many settings when you post something (like who can see it, what information it includes, whether it has a location, etc.) and you have many more global Privacy settings available via that funky lock icon in the top right corner of every Facebook page ever, one of the few places where you can’t change your privacy settings is by posting text in your status update.  Because I know how important your status update is to you and your friends–but Facebook isn’t reading everything you post.  Nor are they setting their computers to constantly monitor your status update to see if you’ve signaled some new relationship between yourself and Facebook.  This is mostly because you’re being paranoid, but it’s also because…

6. You don’t get to modify your agreement with Facebook

Well, okay, that’s a bit harsh.  You do have one way of modifying it–you can delete your account.  Although even then the Facebook terms you accepted when you signed up have some applicability, namely as in what happens when you delete your account.  But those terms you accepted when you signed up?  Yeah, those were actually a contract and you don’t get to modify them without Facebook agreeing.  Just like if you pay your rent by sending a check to your landlord and write a note on it saying “I hereby change my monthly rent to $5” that’s not going to work.  The terms apply to you.  The fact that you chose to accept them without reading the document?  Guess who’s fault that is?  Hint: not Facebook’s.

7. It says you must copy and paste, not share.

It seems silly that I’m even listing this one but it irks me.  Besides the notion of having any status update with a legal impact, why would anyone think that copying and pasting is somehow more impactful than sharing?  Have you ever signed a contract, ever?  Of course you have–you’ve agreed to terms, you’ve signed up for cell phone plans, maybe you’ve bought a house or leased an apartment.  Were you handed a paper to sign or told to check a box?  Of course you were.  You were never  asked to write out a paragraph word for word so that it would apply to you.  That’s just silly.  Stop being silly.

 

There.  Seven ways to detect a hoax post about Facebook’s privacy policy or a lot of other topics.  We don’t need to do this again, do we?

Sigh.  Yeah.  See you next year.

 

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Filed under CopyFUD, Copyright, Facebook, Laws, Privacy, Social Content, Social Platforms

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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Filed under Copyright, Personal Live Streaming, Pinterest, Privacy, Trademark, Twitter

4 Ways That Copyright Is Just Trying To Do Its Job And Doesn’t Control You

“Did Comcast just copyright my diaper? Does that mean I just filled it with derivative works?”

Copyright law has its flaws but it doesn’t control your life.  This despite a blog post that’s been making the rounds on social media.  I’m not going to link it because I’m trying to combat the fear-mongering–one more verified kill and I earn my Hysteria Killer badge!–but you may see it out there getting some shares.  I make it a rule that once four of my friends shares one of these blatantly wrong articles I need to blog about it.  Fourth one was shared this morning, so here we go.

First off, if you ever see a blog post saying that something is controlling you, be skeptical.  Especially if it is something you knew existed but didn’t give it a second thought until this tantalizing headline appears across your feed.  “This is trying to control me?” your freedom loving mind will think, “I DO NOT WANT TO BE CONTROLLED!  YOU DON’T KNOW ME ANONYMOUS ISSUE I DID NOT CARE ABOUT FIVE MINUTES AGO!”

Our latest culprit?  Copyright law.  It’s trying to control you and run your life and make you watch Gilmore Girls reruns.  And only that last thing is good.

As a skeptic, the number one thing to look for is the source.  In this case the article is coming just from one book–it’s essentially a book report.  Single source articles trying to present a comprehensive look at an issue should set off a mild alarm.  Single source articles trying to just tell you about that source–that’s fine.  Like a movie review or an interview with someone.  But when it’s trying to tackle something as big as copyright law, you should expect more.  Like, I dunno, two sources.  Or more.

If you have the time to search for the single source’s credentials you are typically going to find they are very different from what the article suggests.  Like in this case where the article suggests that the book’s author is just an innocent copyright researcher who has some thoughts on the issue.  Instead, the author is a proud proponent of killing a part of copyright law and seeks out every opportunity to advance his cause.  He’s about as impartial a jury member as the prosecutor.

So what is copyright law being accused of this time?  Only these four horrible things.

1. Copyright is all about locks.

This is coming from the guy who hates these locks.  Despises them.  Thinks they are worse than the Star Wars prequels.  The truth is far less evil.  Copyright law does care about locks around content, but it isn’t all about them.  Not even the majority of copyright law is about these locks–directly or indirectly.  Copyright law is about authors and trying to figure out a way to reward them for their creative efforts.  Efforts which are easily stolen.  It’s a difficult challenge in today’s age of incredibly simple copying and as we face new ways of consuming and creating content.  Copyright law does need to change, but to say it’s all about the locks is like saying your car is all about the seat belt.

2. Copyright law is privacy law.

This one is bizarre since it’s talking about US law, a country with the least amount of privacy laws in the western (and a good chunk of the rest) world.  The US is extremely corporate-friendly when it comes to privacy, especially when compared to Europe which is very consumer friendly.  In the European Union they have a documented and acknowledged fundamental human right to privacy.  In the United States the same government agency that oversees privacy also regulates those tags on your mattress that can’t be removed under penalty of law.

Suggesting copyright law is privacy law is a strange statement.  Stranger still is the support for this argument–that when Viacom sued Google they wanted to be able to look at private videos to see if they were infringing.  Yes, Viacom made an outrageous argument in an outrageous lawsuit that went on for years and where Viacom lost almost every step of the way.  Eventually they settled for no money, which is as close to saying “Whoops, my bad!” as a giant media conglomerate is going to come these days. Taking one bad argument from a really bad lawsuit and turning it into a scare tactic is pretty cheap.

3. Copyright law weakens security.

The argument here is that you use computers a lot and computers like to patch themselves without telling you and that’s really insecure because you don’t know what they’re doing.  That’s an interesting theory except that but for a handful of people in the world NOBODY KNOWS EVERYTHING YOUR COMPUTER CAN DO.  Seriously, even computer engineers at Microsoft working on Windows will know their own piece but ask them about another section of the operating system and they’ll shrug, admit they don’t know, and blame them for some bug that impacts their world.  That’s how computers have operated for decades yet–if you want to know every moving piece of how the machine works then get yourself an abacus, stop driving your car, and pitch your smartphone into a lake.  Modern technology builds on the work of more people than you’ve ever known–if that new functionality somehow translates to less security then you just have a crazy definition of security.

4. Copyright law is surveillance and censorship law.

Oh holy hell.  Copyright is considered surveillance because…Snowden?  Seriously, that’s as cohesive an argument they can make.  They toss in Edward Snowden’s name and suddenly it’s about surveillance.  Hey, know what?  Edward Snowden loves frozen yogurt.  Loves it.  So frozen yogurt must be about surveillance too.  Delicious, delicious surveillance.

The censorship take is about organizations abusing the process to issue take down threats.  This is a somewhat fair criticism.  The law does provide for organizations to request content to be removed from web sites and the web sites must comply in order to be shielded from really ugly lawsuits.  Some organizations may abuse this process to claim copyright for material that has no copyright protection, they just don’t like it.  Definitely abuse.  Clearly abuse.  Also not allowed under the law, but it may take a company some work to weed out those requests from the legitimate ones.  Copyright law is not about censorship just because someone is abusing it and for a while can get away with it.  Quite the opposite, in fact.

I am not saying copyright law is perfect.  It does need to change for new technologies, a new collaborative economy and creative environment that technology has created, and better limits between the public interest and corporate ownership.  But just as copyright law is not perfect neither is any other law.  It’s something that impacts us every day whether we realize it or not, from reading articles online to sharing links on Facebook to creating funny memes to watching shows on Netflix.  We live in an incredibly rich world of content and copyright is important.

But it doesn’t control your life and anyone who tells you otherwise is just trying to sell you something.

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Filed under CopyFUD, Copyright, Laws, Privacy

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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Filed under Celebrities, Copyright, Crowdfunding, FTC Endorsement Guidelines, Social Investment, Social Platforms, Terms and Conditions

Is BuzzFeed Worse Than Pinterest When It Comes To Copyright?

“We’re thinking of changing our motto to ‘Copy This!'”

BuzzFeed may be the most illegal site you’ve ever visited.  I say may be because I don’t know your full browsing history–I just work for a technology company, I’m no NSA Analyst.  But given that 40 million people visit the site a month, odds are likely that you’ve been to the site, seen an article shared from the site in your social media feeds, or possibly shared an article from the wildly popular site.  A recently filed lawsuit threatens the BuzzFeed business model and raises the question of whether BuzzFeed is the worst copyright infringer in social media today–potentially outstripping the issues that have been raised for Pinterest.

The lawsuit was filed by photographer Kai Eiselein, a 30+ year photographer who has worked as a photojournalist and other photography positions.  His photo, Contact, was copied by BuzzFeed for one of their lists The 30 Funniest Header Faces (which, if you visit, is now the 29 Funniest Header Faces…more on that later).  The lawsuit points out that BuzzFeed copied the image despite the photograph being protected on Flickr, where it was originally posted.  Typically, if you want to save an image while browsing a website you can right-click on an image and choose an option to save the image.  On Flickr, this functionality can be disabled–if you right-click on Eiselein’s image then a copyright notice pops up telling you that all rights are reserved.  The lawsuit also points out that BuzzFeed intentionally ignores not just pop-up notices like Flickr but also posts several images that contain watermarks (several are still present in the list).  Eiselein complained to BuzzFeed and they later removed the image and changed the name of the list but this wasn’t before dozens of other sites had copied the list.

Eiselein has sued not only for direct infringement by BuzzFeed but also for contributory infringement–knowing inducing another person to violate copyright protections.  This is an interesting angle on an otherwise typical copyright infringement lawsuit since BuzzFeed’s entire business model is built upon the idea of creating stories that will be shared by readers.  For BuzzFeed to succeed, it needs readers to copy and share its information.  This triggers a tricky area of law that the Supreme Court has weighed in on two significant cases.

In 1984, the Supreme Court decided Sony v. Universal Studios (link is to the syllabus of the case rather than the full text, because I’m just that nice).  Sony was accused of being liable for copyright infringement for uses of its VCRs (called VTRs by the Court back then, how quaint).  This led the Supreme Court to set a rule that distributing a product that was capable of substantial non-infringing use would not make the equipment manufacturer liable if users also used that device for infringement.  Since time-shifting (fancy term for recording a show that you watch later) was considered non-infringing then Sony was not liable for merely distributing VCRs.  This rule was used for decades by courts over newer technologies that might enable other intellectual property infringement but also had substantial non-infringing uses.

By the time the 21st century landed, technology had gone through significant changes and the Court was again asked to consider if a technology provider could be liable for infringement by its users in the 2005 MGM v. Grokster case (again, syllabus, you’re welcome).  Grokster was one of the early peer-to-peer file sharing services and evidence showed that they distributed their software with the suggestion that users distribute copyrighted music and movies via their tool.  The Court said that the Sony rule of protecting a technology that has substantial non-infringing uses does not require the law to ignore the intentional infringement and inducement by a technology provider. Following this unanimous ruling, Grokster ceased operations within months.

The issue here is whether BuzzFeed (and similar websites) is closer to Grokster or a VCR.  Several factors seem to go against BuzzFeed.  First is their intentional ignoring of copyright protections, whether watermark or popup notices informing users that the photographer doesn’t want their image placed everywhere possible.  Second is that the safest defense from these claims, the Safe Harbor provisions of the Digital Millennium Copyright Act, don’t apply because this was not an unknown BuzzFeed user posting the infringing content but BuzzFeed itself in the form of one of their paid staff writers.  Third is BuzzFeed’s founder.

Jonah Peretti already had a history with social media and viral content before founding BuzzFeed.  Arguably his most well-known viral content encounter was when he tried to order a pair of customized Nike shoes with the word SWEATSHOP stitched in the side.  The resulting email exchange with Nike went viral before going viral was even a term.  Peretti’s experiences with viral content and research at the famous MIT Media Lab influenced his outlook on media.  He has said that he is more concerned with information being widely distributed rather than it being high-quality:  “The biggest misconception people have is that quality is all that matters.  The truth is that quality helps, but there’s a ton of high-quality things that don’t go anywhere.”  This tone from the top may influence BuzzFeed’s business practices to their detriment.

Peretti also believes that BuzzFeed’s articles are protected by Fair Use.  That’s a very difficult case to make.  As any copyright lawyer will tell you, the moment that you’re hanging your hat on Fair Use, a notoriously fuzzy and difficult defense, you’re signing up to a lot of legal headaches.  In this case, Peretti believes that BuzzFeed articles are transformative and so they are protected.  That’s not exactly a sound legal theory for two huge reasons.

First, Fair Use is determined by analyzing four factors.  Yes, the first factor (purpose and character of the work) does look at whether the resulting work is transformative, but Fair Use requires analysis of all four factors.  It isn’t a legal sudden death where the first time you win a factor then it’s game over in your favor.  BuzzFeed would need to win the analysis on the whole, and given then other three factors I think it’s highly unlikely to do so.

Second, I’m not so sure BuzzFeed is transforming anything.  Copying a bunch of photos into a list does require some creative effort, but at best it is curation and not original authorship.  I’m not saying it’s easy, but it isn’t transformative to the extent the Fair Use exemption will protect its efforts.

To this end, BuzzFeed may be worse than Pinterest when it comes to copyright–they are infringing rights directly and ignoring intentional attempts by authors to prevent copying.  Whether this lawsuit is successful in changing BuzzFeed’s (or similar sites’) practices remains to be seen–a lot can happen in a lawsuit.  But rest assured that even if BuzzFeed loses the case I’m sure we’ll see 27 puppies reacting to the verdict within minutes.

 

 

 

 

 

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Filed under BuzzFeed, CopyFUD, Copyright, Fair Use, Pinterest, Social Content, Social Platforms