Monday, June 5, 2017

Leveraging the Power of Social Media: IP Protection + Enforcement

Facebook has 1.9 billion monthly users. Instagram has 700 million monthly users. Twitter has 328 million monthly users. The number of users on these platforms is astounding and makes social media a powerful source of marketing.

Many entrepreneurs are effectively leveraging the power of social media and online marketing to increase customer engagement and build brand equity at a relatively low cost. Equally important to optimizing your social media campaign is developing and implementing best practices to proactively protect your intellectual property from infringement and take action against others who are infringing your content. Here are a few tips to get you started:

Account Security. As social media users become more and more savvy, the risk of business accounts being hacked continues to increase. It has become increasingly easy for criminals to gain access to accounts that use only standard security procedures such as a username and password. Getting hacked could put you in danger, cost you money, or be damaging to your reputation. Enabling two-factor authenticators, also known as 2FA, is an easy and free measure of additional security that is worth implementing. 2FA requires not only a password and username, but also something that you have on you, i.e. a piece of information only you should know or have immediately on hand (such as a physical token). FacebookInstagram, and Twitter (and most other social media platforms) offer 2FA. 

Established Business Practices. Having established business practices for social media use helps to mitigate risks inherent in its use and avoid costly mistakes and potential liability. Some best practices include:

  • Registering social media accounts in the business’s name
  • Having written agreements that make it clear that the business owns the account, including customer lists, friends, and followers, and that the employee relinquishes any rights to the account if he or she leaves
  • Having a social media policy in place that covers issues such as:
    • Who holds keys to accounts?
    • Who monitors accounts?
    • Do posts need to be vetted?
    • What training is in place for posters?
    • Who looks out for and handles imposters?
    • What security measures are in place to protect accounts?
    • Are appropriate disclaimers used?
    • Do you have a takedown protocol in place?
    • Crisis response team in place?
    • Are e-discovery risks and compliance considered in record retention?
  • Establishing appropriate corporate/employment policies that provide, at a minimum, that whatever the employee creates on company time or with company resources, including via social media, belongs to the employer
Policy for Posting Content. It is important for business owners to effectively manage employees’ social media use and its potential to impact brand equity. It is easy to run afoul of someone else's intellectual property rights when using social media. Workplace social media policies that govern the content that may be posted from a business account are crucial and should address the following topics:
  • The safest approach is to post only original content to eliminate the chance of an infringement claim. When you post or re-post someone else’s content or photographs without giving proper credit or asking permission, you may be setting yourself up to receive a cease and desist letter or possibly a demand for financial compensation.
  • Content must not be misleading and posters should be careful of making claims that cannot be substantiated. Keep in mind that the same advertising rules apply to social media as to print or television advertising.
  •  Be careful with endorsements and testimonials. Endorsements must be truthful and not misleading. The FTC requires certain disclosures regarding the connection between an endorser and a marketer when that connection could affect how an endorsement is evaluated and/or an endorser’s atypical experience with a product or service. 

Protecting your IP. The speed at which content is published and the enormous number of people who can be reached on a global basis through social media creates unique challenges for business owners to effectively protect their intellectual property. The quickest way to get relief against a third party who is infringing your IP varies based on the type of infringement and the platform on which it appears.

If your trademark or copyright is being used without authorization on a social media platform, the quickest way to get relief is often to submit a complaint to the platform directly. FacebookTwitterInstagram (and most other social media platforms) have platform policies that detail the processes for submitting a takedown request.  

The Bottom Line. Platforms like Facebook and Twitter have become integral parts of brand awareness, making social media less of an optional marketing opportunity and more of a priority, especially for start-ups working with smaller budgets. Understanding how to protect your IP from infringement and take action against others who are infringing your content can prevent costly mistakes and help capture value.

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