Social Media Misuse-A Cautionary Tale
We live in a digital world where social media has become the go-to space for companies to connect with consumers. While it may feel like social media is a free and open space for creative marketing, enforcement actions related to social media use—or misuse—are on the rise. Below are common issues and practical steps to help try and avoid being on the receiving end of enforcement efforts.
Available Does Not Necessarily Mean Free to Use
The culture on social media platforms is to share, repost, and use the current viral tune while doing it. Despite the free flow of information online, it is crucial for brands to understand and respect copyright law. Copyright protects original works of authorship, such as music, images, and videos. Creating a post using copyrighted works without permission may amount to copyright infringement. There has been a rise in copyright owners going after brands using their music or images on social media without permission. In many instances, the song used is the viral song of the week and the image used includes the brand’s product. However, viral does not mean free and the use of your product in a third-party photo does not automatically give you the right to use that image. Further, merely crediting the creator does not replace the need for permission. Companies should take steps to ensure that all music and images are properly licensed.
Most social media platforms offer general music libraries for personal use and separate commercial libraries specifically for commercial use. Companies should review the license for the music they use to ensure compliance. Where possible, use original images created specifically for your company or obtain the necessary license and permissions to use someone else’s image. Companies should also consider maintaining clear records of all licenses and approvals. Establishing a formal approval process or checklist can also help ensure compliance.
Generate New Content Cautiously
With enforcement on the rise, the question becomes where to find original content quickly, which leads to the use of artificial intelligence (AI)-generated content. There are a number of platforms offering AI software to generate original content for commercial use. These platforms create new possibilities for content creation, but they should be used with caution. Several lawsuits have challenged the use of copyrighted materials in AI training and allege that AI-generated outputs may infringe existing copyrights. The AI generation platform’s license and terms of use should be reviewed to determine things such as whether the proposed use is covered, the ownership of the generated materials, and if indemnification is provided by the platform for infringement claims. Companies should also consider checking if the AI software has any measures in place to prevent recreating training material in output materials.
Disclose Your Influence
Influencer marketing has become a powerful tool for brands, but it comes with responsibilities. The Federal Trade Commission has established guidelines to ensure transparency in influencer marketing. One of the key guidelines is the disclosure of material connections between influencers and brands. This means that if an influencer receives compensation or free products in exchange for promotion, they should disclose this relationship to their audience. Such transparency builds trust with consumers. Additional things to consider include a provision in the influencer agreement requiring the influencer to not use third-party content without permission and to only use properly licensed works in his or her post. Also consider adding the step of verifying that influencers use only properly licensed works to any influencer approval process or checklist.
There are a myriad of factors to consider when using social media to connect with consumers. However, companies must also ensure that the use does not violate copyright law.
This post provides general guidance only. Each situation is unique and depends on specific facts and applicable law. If you have questions or would like to discuss your circumstances, we are here to help.