Social media influencers need to stay abreast of intellectual property laws so their content does not violate them. This post explores the relevant U.S. legal issues implicated by every video or post creation.
A trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Think Coca-Cola for drink products, Kate Spade for mid-luxury bags and jewelry, or Victoria Secret for declining lingerie and apparel. Apple even has trade dress protections in the layout of its stores. Service marks designate the source of a service, like Google, United Airlines and Amazon.
Does someone else have the legal trademark rights to your social media handle or channel name?
A relatively quick and painless search on the USPTO website can tell you if a mark, design, trade dress or slogan has been registered and therefore unavailable to you. The USPTO’s Trademark Electronic Search System (TESS) allows you to search for registered live marks, pending marks, and dead marks. Access TESS here.
Using other brand’s marks
Trademark protection finds its grounding in preventing consumer confusion. To preserve the strength of their mark, brands pay attention to the unauthorized uses of their marks. Luckily, First Amendment freedom of expression interests are strong enough to allow some use of owned marks.
Review without paid promotion from a company of a product
Are you reviewing a particular product that you purchased yourself? Perhaps using it in a makeup tutorial, a book review, or a how-to video. Because of the first amendment’s strength and the desire for a marketplace of ideas, including criticism, offering your honest, unpaid opinion of a product means that you can use the mark (brand name, packaging etc.) as long as it does not suggest false endorsement by the brand, therefore violating § 43(a) of the Lanham Act.
Where is the line between exercising your first amendment right and false endorsement? A strong starting point is disclosing how you obtained the product and that you have no affiliation with the owner of the mark. This can be in your video’s description box on YouTube, or the caption on an Instagram post.
The unpaid opinion of a product allows you to use the mark as long as it is an accurate description of the product.
Review or post with paid promotion from a company
The Federal Trade Commission (FTC) governs how influencers must disclose when posts are advertisements or paid reviews. It is important to disclose paid promotions from a trademark standpoint because consumers may not understand the objectivity or credibility of the influencer, and this can constitute a form of actionable deceptive advertising. Refer to the FTC’s Disclosures 101 for Social Media Influencers discussing when and how to disclose a relationship between you and a brand.
A copyright protects “original works of authorship fixed in a tangible medium of expression.” This includes published and unpublished works. Unlike trademark law, copyright law has its genesis in the U.S. Constitution.
If there is a work of authorship not your own that you would like to use in your own content (think photos, videos, artwork, sound effects or music), make sure that it is compliant with the Copyright Act. The Copyright Act gives owners the exclusive right to copy, distribute, display and/or perform their work. Often times, creators, especially owners of sound recordings, want to license out their work because it’s an additional funding stream. You can, of course, request permission to use an image or other protected work. But, just starting out as an influencer who may be low on cashflow, this may not always be an option.
Disclosure will not save you
You cannot avoid copyright infringement solely by giving credit to the copyright owner or by including “I do not own” the material. Moreover, just because you purchased a song or a DVD, you do not then have the right to upload and use it in your own content. That’s a fast way to get a takedown letter.
Fair use allows the use of copyrighted content under certain circumstances without permission from the copyright owner Fair use allows the reproduction of copyrighted works for purposes such as “criticism, comment, news reporting, teaching, scholarship, or research.” This also includes parody, but does not include satire as readily. Whether or not use constitutes fair use under the Copyright Act is determined by courts, not by the specific social media platforms on which you publish the content. Courts tend to find nonprofit educational and non-commercial uses to be fair use. This does not mean that all commercial uses of a work are not fair use, though.
Where can you get free photos and images to use?
The nonprofit, Creative Commons, is a virtual space in which creators want their work to be disseminated. However, the creators manage their content on their own terms: creators can tag their work as free to use in the public domain; they can specify they do not want their work used commercially; that they want attribution for the use of their work; or, if derivatives can be made (e.g. remixes).
Purchasing a song on iTunes or Google Play does not give you the right to use the owner’s song on your content. A synchronization license is a music license allowing you to use music in a visual piece of work, so if you pay to use a song, you also need to license it to appear in your video.
A major misunderstanding in the influencer community is that you are able to use a short clip of a copyrighted song and it’s considered fair use. That is plainly not true. Any clip of a song, no matter the length, can be subject to copyright infringement.
Where to get music for free
The avenues for free music are limited. You may download free music or sound effects from YouTube’s audio library. The audio library is probably the best and easiest. Free Stock Music is another copyright-free website.
Original musical content you create is yours to use for free as well.
Paid for music
Tracking down the copyright owner is often the most difficult part of acquiring permission to use the song. You can look to performing rights societies for the contact information of music publishers and write a letter or email. It’s important to clarify your intended use of the song.
The cost of using a song varies and is up to the discretion of the owner of the copyright, even paying royalties. You may find some royalty-free licenses on Pond5. You can also pay a monthly subscription at Epidemic Sound, HookSounds, or Foximusic to have access to downloadable music. If, for some reason, you decide to cancel your subscription, your previously used content will still be “covered.”
* Natalie Vicchio is an Associate Editor on the Michigan Technology Law Review.