Technological Evolution The Impact of Social Media, Big Data and Privacy on Business

Transcription

1 Technological Evolution The Impact of Social Media, Big Data and Privacy on Business Recent Developments at the Intersection of Social Media and Intellectual Property Law Christina Gensler Corporate Counsel Caterpillar, Inc. Troy Klyber Intellectual Property Manager The Art Institute of Chicago Rich Assmus Partner Mayer Brown LLP

2 Christina Gensler Troy Klyber Richard M. Assmus Caterpillar Inc. Art Institute of Chicago Mayer Brown LLP 2

3 Agenda Key Intellectual Property rights and claims at issue Social media at Caterpillar Inc. Social media at The Art Institute of Chicago What can go wrong Fan site engagement / Account data ownership Social media hypotheticals How to handle the Friday afternoon call from your business client demanding action

4 Forms of Intellectual Property and Claims at Issue in Social Media Trademarks Company names and logos Product names and logos Taglines Other Lanham Act claims False advertising Product disparagement Other advertising issues Undisclosed sponsorships Violation of endorsement guidelines Copyrightable works Photos Music Text Publicity rights Use of name, photo or likeness Not just celebrities Endorsements (actual or implied) Account ownership?

5 Example of Branded Twitter Home Page

6 US Trademark for Hashtag

7 Uses of Copyrighted Works and Publicity Rights

8 Use of Publicity Rights?

9 Intellectual Property Law for Social Media is 10 Years Behind Internet IP Law Internet and IP (20 years of experience, cases and statutes) 1991 first website 1994 Yahoo launches 1996 Panavision sues cybersquatter 1998 early metatag lawsuits 1998 DMCA passes 1999 Anti-Cybersquatting Act (ACPA) passes 2010 YouTube DMCA district court decision issues Social Media and IP (~ 10 years) 2003 MySpace launches 2004 Facebook launches 2006 Twitter launches 2009 first defamation lawsuit over a Tweet ( Twibel ) 2009 Tony La Russa sues over fake Twitter account 2010 Instagram and Pinterest launch 2014 first Twibel jury verdict

10 Social Media Issues Faced by a Large, Multinational Corporation Caterpillar Inc.

11 Social Media Issues Faced by a Large, Multinational Corporation Public Relations Retail Licensees Business Units Dealers Caterpillar (+ subsidiaries) Personnel Personal Fans/ Affinity Groups Marketing Int l vs. US

12 Social Media Issues Faced by a Large Multi-national Corporation

13 Social Media Issues Faced by a Large, Multinational Corporation

14 Social Media at The Art Institute of Chicago

15 Social Media at The Art Institute of Chicago Vital statistics AIC Facebook page likes: 288,200 AIC Twitter followers: 111,000 AIC Instagram followers: 20,800 AIC Pinterest followers: 6,750 Other platforms: Google+, Trip Advisor, Yelp, Tinder (?)

16 Social Media at The Art Institute of Chicago Affiliated Social Media Profiles Art Institute Teens; Art Institute of Chicago Teacher Programs; The Auxiliary Board of the Art Institute of Chicago; The Art Institute of Chicago Museum Shop; Museum3D; The Art Institute of Chicago Special Events; Ryerson & Burnham Libraries, the Art Institute of Chicago; The Evening Associates of the Art Institute of Chicago; AIC Images; Community Associates of the Art Institute of Chicago; Barrington/Northwest Community Associates of the Art Institute of Chicago; The Naperville Community Associates of the Art Institute of Chicago; Lake Forest/Lake Bluff Community Associates of the Art Institute of Chicago; and who knows what else.

17 Social Media at The Art Institute of Chicago Playing offense

18 Social Media at The Art Institute of Chicago Playing defense Our content is usually not our content.

19 Social Media at The Art Institute of Chicago Public domain content Jean-Baptiste-Camille Corot, Interrupted Reading, c. 1870

20 Social Media at The Art Institute of Chicago Licensed content René Magritte, The Red Model, Charly Herscovici ADAGP ARS, 2015.

21 Social Media at The Art Institute of Chicago

22 Social Media at The Art Institute of Chicago

23 Case Study in Social Media Management

24 Stacey Mattocks v. Black Entertainment Television LLC (S.D. Fla. 2014) Case involved a fan page for the television series The Game about NFL players and their lives

25 Stacey Mattocks v. Black Entertainment Television LLC (cont.) Plaintiff Ms. Mattocks created a Facebook fan page for the series in 2008 In 2010, BET hired Ms. Mattocks on a part-time basis to manage her Facebook fan page The fan page became an extension of BET s social media outreach: BET permitted the display of its trademarks on the page BET encouraged fans to Like the page on Facebook BET provided Ms. Mattocks with exclusive content for the page BET posted content directly

26 Stacey Mattocks v. Black Entertainment Television LLC (cont.) Strategy worked number of Likes increased three-fold from 2M to 6M In February 2011, parties entered new agreement documenting BET s access to page In June 2012, parties discussed Ms. Mattocks becoming full time Apparently, to gain leverage, Ms. Mattocks restricted BET s access to the page

27 Stacey Mattocks v. Black Entertainment Television LLC (cont.) BET terminated the agreement with Ms. Mattocks in August 2012 BET asked Facebook to migrate the Likes on the fan page to the official page BET created (which, prior to the transfer, had 900 Likes ) After review, Facebook did this Facebook also shut down Ms. Mattocks page (apparently as a violation of Facebook policy against confusing fan pages) Ms. Mattocks was out of a job and lost control of her erstwhile fan page (which was also a source of income)

28 Stacey Mattocks v. Black Entertainment Television LLC (cont.) In July 2013, Ms. Mattocks filed suit in Florida federal court Tortious interference with Ms. Mattocks agreement with Facebook Breach of contract Conversion The Likes constituted a business interest. (SAC 85) Over 13 months and over 100 docket entries later, summary judgment was fully briefed

29 Stacey Mattocks v. Black Entertainment Television LLC (cont.) The Court granted BET s motion for summary judgment Tortious interference claims failed for lack of evidence that BET acted maliciously and the fact that Facebook was acting to protect BET s intellectual property rights BET s performance of the contract was excused by Ms. Mattocks breach Facebook Likes are not a property interest Given the tenuous relationship between Likes on a Facebook page and the creator of the page, the Likes cannot be converted in the same manner as goodwill or other tangible business interest.

30 Case Study in Account Ownership

31 Cellular Accessories for Less, Inc. v. Trintias LLC (C.D. Cal. 2014) Trade secrets case involving a familiar fact pattern Terminated sales employee starts up a competitor The day before he left, he downloaded contact information, price and sales information, and one internal strategy document The social media twist: the customer contacts are also maintained on his personal LinkedIn account Parties cross-moved for summary judgment after two years of litigation

32 Cellular Accessories for Less, Inc. v. Trintias LLC (cont.) Defendant sought summary judgment with respect to LinkedIn account, arguing that LinkedIn contacts viewable by third parties Plaintiff argued that confidentiality depended on LinkedIn settings Holdings: Court would not take judicial notice of LinkedIn functionality Disputed issues of fact as to whether contacts were public and whether this was done with permission

33 Hypotheticals (Late on a Friday)

34 Hypothetical 1 You get a call from the new CFO. She says someone is impersonating her on LinkedIn. She wants the page taken down right away!

35 Hypothetical 2 A brand manager calls. He s sending a marketing team to a basketball tournament (sponsored by your primary competitor), and the team is going to live-tweet the game, complete with images and the competitor and using the event s coined hashtag. No problem, right? he asks.

36 Hypothetical 3 The marketing department has just launched a new product, and the reaction on social media has been lukewarm at best. The CMO has sent a division-wide asking all 10,000 employees to be sure to Like the product page on Facebook and to help respond to negative comments that others post. Several days later (on Friday), the legal department gets the news.

37 Hypothetical 4 The head of HR calls. A former employee is using the company logo on his LinkedIn page. In addition, the former employee is posting extensive content in support of an international terrorist organization. HR wants to know what to do.

38 Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.