For small businesses, the practice of using media for online marketing and social media has become an increasingly complicated one with many potential legal pitfalls. There are now contractors available to copyright owners whose sole function is to police the Internet for copyrighted material and enforce these copyrights by demanding high settlement payments or, in the alternative, by filing lawsuits in federal court.
Recently, MacElree Harvey represented a small business in defense of one of these claims and we found that litigation might have been avoided had certain policies been put in place. If your company uses photographs, music, or other media created by third parties in its marketing or social networking strategy, the following tips are a good start to protect your rights and avoid liability:
Understand the potential legal implications related to the misuse of intellectual property.
Why is a strategy for use of third party media a good idea? Because copyright misappropriation, misuse, and infringement carries with it potentially serious consequences.
Under federal law, copyright owners can not only obtain an injunction against an infringer in federal court, but also damages. Damages include direct monetary damages for actual monetary loss or, in the alternative, statutory damages that may be in the thousands of dollars. These monetary damages may be awarded even if the infringer did not intend to violate the copyright. In addition, a court can award the copyright owner costly attorneys’ fees. In some cases, even criminal charges can be filed. 17 U.S.C. § 502, et seq.
Develop a strategy and write it down.
If your business uses third party media in its social networking and marketing campaigns, a plan should be developed to cover the use of that media. The plan should then be committed to writing and provided to employees.
The terms of this plan should be designed to limit the misuse and misappropriation of third party media by employees who use third party media in developing websites, written and audible marketing materials, and advertising on social networking sites.
It is also recommended that you designate in the plan one person to receive and respond to accusations of infringement.
Understand the terms and conditions of social networking websites prior to use.
If your company utilizes social networking websites, it is important to understand the rights and potential liabilities in connection with the use of those sites. This is particularly true regarding the website’s restrictions on advertising, legal responsibilities assumed for liability related to the website, whether your company waives any rights to its own intellectual property, whether licenses are necessary, and legal recourses available should something go wrong.
An understanding of these issues will help your company make decisions that protect its rights and prevent liability for misuse of intellectual property.
Exercise caution when purchasing licenses to use third party media for marketing purposes.
If your business purchases licenses to use third party media, it is important to perform due diligence on the vendor to be sure that it has permission to sell the license. Second, understand the scope of the license purchased and be sure not to exceed it. Finally, limit the number of employees authorized to purchase licenses. This will help the business keep track of the licenses and records should it ever be accused of copyright infringement.
The above tips are a good start toward an effective intellectual property plan. If you feel that a plan could help your business avoid liability, feel free to contact an attorney at MacElree Harvey, Ltd. today.