How to Post on Social Media Without Getting Sued

Hal Conick
Marketing News
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Key Takeaways
​What? More companies now use social media as a large part of their daily marketing efforts. How can they get the most out of the platforms while avoiding lawsuits?

So what? Social media branded images work much like commercial images. This means brands must think twice before using copyrighted or trademarked material online, down to hashtags.  

Now What? Companies must ensure that no toes are stepped on and that their social posts follow online etiquette. 
​Nov. 15, 2016

Legal counsel from BuzzFeed, Twitter and Wells Fargo give some dos and don’ts for branded and copyrighted images on social media


If a B-to-B company is looking to join big conversations on social media—think the Emmy’s, the Super Bowl or the Olympics—it’s a good idea to check in with the legal team first. After all, no one enjoys being sued.

During the 2016 ANA/BAA Marketing Law Conference in Chicago, legal counsel from some of the biggest names in social media discussed whether they’d allow their teams to join discussions, post pictures or use hashtags of other companies or events. 

With the Content Marketing Institute’s “2016 Benchmarks, Budgets, and Trends” report noting that 93% of B-to-B marketers use social media, it is essential to be sure there is no needless trouble caused by an errant post. 

Here are five tips on navigating the waters of branding, copyright and trademark clearance on social media from prominent attorneys from Wells Fargo, BuzzFeed and Twitter.

1. Copyright clearance doesn’t change on social platforms.

Looking to include a picture of a Grammy, Emmy or Oscar to make your social media feed more relatable? Think twice, says Craig Moore, general counsel at Wells Fargo. The law remains the same, whether a company is using copyrighted material in a Super Bowl commercial or a tweet, even if there is a lower level of risk on social media. 

Greg Brehm, assistant general counsel at BuzzFeed, agrees with the heart of the point but disagrees slightly: brands may have a more difficult time on the internet because of the long tail of the post, he says. Images and posts get archived and have a longer life than they might while being played during a commercial.

“You may have the correct license today,” Moore says, “but three years down the line, that Facebook post or that tweet is still on your account, and you could run into licensing problems at that time.”

2. Riff with care.

Eric Fleisig-Greene, associate director of legal at Twitter, says that companies and brands often feel strongly about their assets. Other businesses that use these images must take care not make an undesirable association. 

Robert Newman, partner at Winston and Strawn LLP, gave the example of a Honda Odyssey commercial that featured a fire-breathing dragon. This image, he says, upset those who own the copyright for Godzilla and led to a lawsuit. 

Moore says that companies cannot stop other organizations from suing them if they want to, so worrying too heavily about something benign may be a waste of energy. 

3. Know who you’re taking from.

The Beastie Boys’ song “Girls” was used by Goldie Blox in a commercial that changed the lyrics from sexist to empowering. This move is one that would have been in line with the evolution of The Beastie Boys’ lyrical content over their musical career, but Brehm says this is a great example of a company needing to know who​ they are taking from.

“I don’t think it would have taken a lot of research to know The Beastie Boys don’t do creative licensing,” he says.

 

 Princess Machine

 

Artists put up a fight when it comes to using their material online, Brehm says–much more of a fight than a random person on Twitter or Facebook would. The latter may be honored to have their art used in an ad campaign or social media post, whereas artists tend to be very protective of their material.

A different side of this is using copyrighted image that a brand won’t really mind seeing spread around. Moore uses the example of Chicago businesses using The Chicago Cub’s “W” flag in advertising and in store-front windows to congratulate the team on its World Series victory. In this situation, the Cubs won’t likely come after a company that uses their imagery in a convivial way. 

4. Don’t use memes for branding.

B-to-B organizations may be excited to post memes, a jokey image, video or piece of text that goes viral.  BuzzFeed’s Brehm knows the feeling: “My company would not exist without memes.”

However, Brehm says BuzzFeed would never use memes as branded content. For example, the star of the Grumpy Cat memes is a real cat named Tardar Sauce. The cat’s owner makes money from Tardar Sauce’s image, so it likely would not be a good idea to use this particular meme for branding purposes.

Outside of the legal problems memes can bring, Brehm says companies do not want to step on any toes of online communities built around memes. 

“They don’t like outsiders messing with them or taking advantage of them,” he says, adding that companies don’t want to one day wake up to a list of comments chiding them for stealing. “It’s not the brand associate you want.”

5. Hashtags and Dead Celebrities

Jumping into a hashtag on Twitter, Instagram or Facebook may seem like a great idea, but hashtags are now being trademarked, and many names used within hashtags are copyrighted. For example, Brehm says jumping into the #Oscars hashtag would be a nonstarter for him. 

Businesses must also be careful about jumping into a hashtag just to hijack a conversation. Not only is this rude, it may not be looked upon kindly by the owner of the hashtag. 

Using images of dead celebrities is also an area where more eyes may be watching than one would imagine. “Keep in mind that just because they’re dead, it isn’t over,” Newman says of using these celebrities in branding.

Brehm says that California has laws against using dead celebrities in ads​ without the estate’s permission. If BuzzFeed can’t use an ad in California, he says this is a good indication that they shouldn’t be running that ad anywhere. 


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Author Bio:

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Hal Conick
Hal Conick is a staff writer for the AMA’s magazines and e-newsletters. He can be reached at hconick@ama.org or on Twitter at @HalConick.
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