Social Media, Intellectual Property And Protecting Your A$$ets!
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Social media is in the middle of many things we do these days.
Thus, intellectual property law gets pulled right in and failure to
take basic steps to protect your assets can be detrimental to your
intellectual property rights1. This article focuses on
three well known intellectual property types, their interaction
with social media, and identifies some best practices every
business should take to operate in social media without creating
unnecessary intellectual property risks.
Copyrights arise from original works of
authorship once they are fixed in a tangible medium of
expression. Common works are expressed as written text
like emails, social media sites and social posts, 2-D and 3-D
artwork live and online, streaming music, podcasts, and all these
in digital to hardcopy formats and everything in between.
Best practices for copyrights in social media are:
- Have permission to use other’s work. Just because you found
it on the internet rarely means it is free for you to use. Better
yet, to best avoid infringing on other’s work, link to their
work, don’t make a copy on your site, and give credit to the
- Use takedown notices to prevent infringement of your rights in
social media. However, be aware of fair use rights, for you and
others, before automatically demanding a takedown of the work.
- Know the use policies for the social media platforms you use.
Often, mere use of the platform binds you to the terms of that
platform. This can grant the platform, and its users, a right to
use your work for free on that platform2, and sometimes
Trademarks are any indicia affixed to goods,
while service marks are any indicia used to sell
or advertise services, and both identify the source of the
goods/services. It is the goodwill and product/service
expectation associated with a mark that brings value to its
Best practices for use of marks in social media are:
- Monitor the use of your mark and make sure others are not so
close they are “confusingly similar” to cause you to be
confused with you competitor. If someone is too close, a warning
letter needs to be sent or you could lose your mark by diluting it
with other’s use
- Avoid misusing your mark by properly using the mark as an
adjective and not a noun. KLEENEX is not the generic name for those
white soft flexible sheets you sneeze into, facial tissue is. So,
it is, “pass me a KLEENEX facial tissue, please.”
- There is “fair use” of another’s mark, but it is
a narrow exception, and you should be wary of using another’s
mark (and vice versa) when a commercial purpose is involved.
Last, and certainly not least, are trade secrets. A trade secret
is any information not generally known to the
public (i.e., it does not have to be unique information,
but the fact your company knows it is not generally known to
others) that gives economic benefit to its owner
and the owner takes reasonable efforts to maintain its
secrecy (i.e., it must be at least confidential
information). Typical types of trade secrets are customer lists,
ingredient lists, lists of procedures to perform services or make
goods, machine operating instructions, and competitive
Best practices for trade secrets in social media are:
- Have clear internal policies for what employees can and cannot
post in social media as relates to work information, and ensure
they know and understand the policies.
- Help employees know what trade secrets they encounter in their
work4 as well as the sensitivity and confidentiality of
- Control access to trade secrets to those employees (and
authorized third parties) who have a need to know it and ensure
they follow use restrictions for the information.
The little things matter. Regular, small reminders via short
videos go a long way to educating employees when they are surfing
social media. Enable your employees to do the right thing and ask
us how else we can assist you to do so.
This article is scheduled to be printed in the October issue of
The Business News.
1 Intellectual property (IP) is a group of legal rights
that provide protection over information and things people create
or invent, often involving the human mind. The key types of IP,
defined by the US Constitution, Federal, and State law, are:
Copyright, Trade/Service Mark, Trade Secret and Patent.
4 Each person needs to know what is a trade secret,
generally, not its details unless that is part of their
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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