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Socially Aware Blog

The Law and Business of Social Media

Monkey Selfie Redux

Posted in Trademark

This is the famous Monkey Selfie.

When we last examined the intellectual property issues raised by a self-portrait taken by a talented female Indonesian crested black macaque—popularly known as the “Monkey Selfie”—we concluded that there was unlikely to be any copyright protection in the work, under either U.S. law or U.K. law.

Following that analysis, the U.S. Copyright Office further clarified its views on the subject.  In its public draft of the third edition of the Compendium of U.S. Copyright Office Practices, the Copyright Office specified in Section 306 (“The Human Authorship Requirement”) that “[t]he Office will not register works produced by nature, animals, or plants. . . .  Examples:  A photograph taken by a monkey.”


Now there is yet another wrinkle in the saga of what may be the world’s most photogenic monkey.

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item).  The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken.  Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate.  But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

This is the image from the trademark application.

We note that the application is in its very early stages, and has not yet been assigned to an examining attorney.

Having made an impact on copyright law, is the monkey now turning her sights to trademark law? What next? The right of publicity? A patent application? Will any area of intellectual property law be left untouched by this simian shutterbug? Stay tuned.

Status Updates

Posted in Status Updates
  • Pay to play. Attention, marketing professionals: The free ride that Facebook has been giving to advertisers is coming to end. We’ve recently discussed Facebook’s recently ban on “like” gating. Now, inspired by its users’ dissatisfaction with the prevalence of promotional content on the Facebook platform, the social media giant will start lowering the priority of marketers’ unpaid posts in its users’ news feeds next year. To prevent a post from being relegated to a place where it’s unlikely to ever be seen, a company will have to package it in the form of a paid-for ad. What, at first blush, might seem like Facebook fans’ gain and the marketing world’s loss is actually a win-win, according to Brian Boland, a Facebook vice president who oversees marketing of ad products. “An ad maker doesn’t want to serve content to people who don’t want to see those posts,” he told the New York Times. Plus, paid-for ads are easier to track than regular content. The change might nevertheless result in marketers turning more often to Twitter, which doesn’t rank posts. But, with over 1.35 billion monthly active users and ad revenue at $2.96 billion, perhaps Facebook can afford not to care.
  • Car tunes. Uber is adding an intriguing new feature to its popular ride-sharing service – music. It has teamed up with Spotify to enhance the Uber experience by allowing riders to select the tunes they want to hear during the ride. Customers will be able to pause, skip, rewind or shuffle tracks in their playlist. Uber has reportedly already begun to ask its drivers to take the steps necessary to connect their Uber-provided phone to the car’s stereo system, so as to enable riders to access songs through Spotify. This idea fits well with Spotify’s strategy of making alliances to bring its music to customers in a number of different environments. For example, Spotify has made alliances with Ford and Volvo to include its music service in those companies’ vehicles. In any event, may we suggest Billy Ocean’s “Get Out of My Dreams, Get Into My Car” and The Clash’s “Brand New Cadillac” for your Uber playlist? And, by the way, is someone giving thought to potential public performance issues here?
  • Going private. Under the Privacy Act, Americans have a way to challenge the misuse or abuse of their personal information by the federal government – a right that hit the headlines after the disclosure by Edward Snowden of the National Security Agency’s surveillance programs. U.S. citizens also have the right to challenge breaches of information privacy by governments in the European Union. But EU residents don’t have any recourse against the U.S. government under our Privacy Act – an omission that several technology firms say needs to be corrected.  David Drummond, Google’s chief legal officer, recently wrote in a blog post: “Google supports legislation to extend the US Privacy Act to EU citizens. The Obama Administration has already pledged its support for this change and we look forward to working with Congress to try and make this happen.” Indeed, outgoing Attorney General Eric Holder Jr. did indicate support for this change in a speech in Athens last summer. But will there be any legislative action? Privacy and civil liberties advocates are adopting a wait-and-see attitude.

R.I.P.: The Facebook “Like” Gate

Posted in Online Promotions

Do you still “like” me? Companies with Facebook Pages will find themselves asking that question of their followers over the next few weeks, as Facebook brings an end to the popular practice of offering discounts, exclusive content and other incentives in exchange for liking a Page.

Facebook had previously facilitated this exchange by allowing Page operators to reveal certain content only to users who had liked the Page. This practice was known as “like gating.” The exclusive content might have included coupon codes, contest entry forms, voting buttons for polls and other content that would create an incentive for the user to like the Page. Even altruistic incentives have been offered, such as promises by brands to donate a dollar to charity for each like that their Page receives.

Like gating became a popular—and successful—way for companies to build followers for their Facebook Pages. We won’t know exactly how many of the 4.5 billion likes per day received on Facebook were due to like gating, but the number was certainly significant.

The like gate disappeared earlier this month almost as quickly as it had become widespread. Following a 90-day grace period, a new Facebook rule took effect on November 5, 2014, identifying three—and only three—specific actions on Facebook that users could be incentivized to perform. Companies quickly realized that liking a Page was conspicuously absent from that list of actions. (It remains permissible to provide incentives for users to log into a Facebook app, to enter a promotion on a Facebook app’s Page, and to check into a place.)

In a blog post announcing this change, Facebook made clear that companies “must not incentivize people to use social plugins or to like a Page.” Facebook also provided its behind-the-scenes reasoning on the change. Facebook believes that eliminating the practice of like gating will help “ensure quality connections and help businesses reach the people who matter to them” rather than building relationships on Facebook that are based on “artificial incentives.”

Companies will undoubtedly find ways to continue building their presences on Facebook without using the like gate. Indeed, many marketers had already been advising that like gating was quickly becoming an outdated practice, and that the followers generated by like gating were less valuable than followers generated organically.

The next time you log into Facebook, you may find your favorite brand asking you to engage with the brand in a more substantial way, such as by submitting user-generated content, instead of simply liking its Page. Known as “action gating,” this alternative practice is already being touted by marketers as a way to build a more valuable online fan base through more active types of engagement.

The like gate is dead. Long live the action gate.

Status Updates

Posted in Status Updates
  • Laundry time. Make sure you are getting what you’re paying for. That’s good advice in a lot of areas of human endeavor and it’s certainly true of online advertising. We wrote last month about efforts by the online advertising industry to impose standards on how viewable an ad must be.  Now advertisers have a new worry: “domain laundering,” a scheme in which online advertising exchanges represent to advertisers that ads will appear on legitimate sites, but actually place the ads on sites known for pirated content. Clearly, that’s not the environment in which an advertiser wants its message to be located. “This has become increasingly common as sophisticated perpetrators realize they can circumvent the manual, internal checks that many ad platforms have in place,” the senior vice president of corporate development at comScore, a digital analytics company, told the Wall Street Journal.
  • Valuable tweets. Twitter earned $361 million in the last fiscal quarter and has certainly carved out a place on the social media scene. Kurt Wagner of Re/code says this is a perfect time for the company’s leaders to define what Twitter aspires to become in the next few years. Does it plan to try to hit a billion users? (Its current count of active users is about 284 million.) Or is it thinking somewhat less broadly? Twitter starts with a smaller user base than Google or Facebook, but it provides an immediacy that distinguishes Twitter from many other major networks. According to Wagner, this is also a good time for Twitter to explain to advertisers what its true value is. One key may be for Twitter to find a way to count the people who don’t have accounts but still visit its site or see tweets on television.
  • Cops and robbers. There’s been a lot of discussion about law enforcement and social media: Are the cops keeping up with techniques that are being used by criminals? And are they making sure to stay within the framework of Supreme Court decisions that protect the rights of suspects? A new study from LexisNexis isn’t especially encouraging. It shows that 80 percent of law enforcement agencies in the United States use social media to catch criminals but that 52 percent of them don’t have a formal policy regarding the use of social media. Only 33 percent of the agencies have an assigned social media monitor, while the others leave such monitoring to individual officers. The study solicited answers from nearly 500 local, state and federal enforcement agencies.

Status Updates

Posted in Status Updates
  • That’s a lot of latte. It turns out that Starbucks—not a company in the mobile payments business—was the first company to make in-person payments by mobile phone mainstream. According to recent statements by the coffee giant’s representatives, Starbucks shops handled seven million mobile payments weekly last year, accounting for a whopping 90% of all mobile payments to U.S. retailers in 2013. A Starbucks app available on Apple iOS and Android devices allows coffee aficionados to maintain, on their phones, a prepaid Starbucks card just like physical Starbucks payment card that the company’s fans have been carrying in their wallets for years. The coffee giant’s customers’ familiarity with a prepaid-card system likely contributed to the early popularity of mobile payments at Starbucks stores.
  • Social notworking. Workplace-related chatter on anonymous messaging apps like Whisper and Secret has inspired the creation of Canary—an anonymous messaging app that will feature threads authored exclusively by the employees of a particular company. The threads will be public, but only verified employees of a company that is the subject of a post will be able to contribute to that post. To make sure a poster is a bona fide employee of a company he or she is writing about, Canary will require the poster to provide his or her work email address. In order to contribute to a thread dedicated to gossip about the goings on at, say, General Motors’ offices, a Canary user would have to provide his or her GM work email address. Although Canary’s creators insist that its users’ anonymity will be protected, the pundits are skeptical about social media users’ willingness to gossip publicly about their employers. In any event, employers – you’ve been warned.
  • A picture’s worth 1,000 text messages. A lot of companies make Facebook or Twitter the center of their social media campaigns, but Katrina Craigwell, General Electric’s head of digital programming, has chosen to portray GE’s products in uniquely visual ways by focusing on GE’s Instagram and YouTube accounts. As a result of her efforts, a series of videos about GE products that might seem unlikely to generate clicks—we’re talking hydrophobic coatings, here, folks—actually drew eight million viewers. The secret: cutting-edge photography and GE scientists’ relatively simple explanations of the technology. Craigwell recently told Tech Republic, “If I give you a white paper PDF on a GE jet engine, your eyes might glaze over although it’s a beautiful piece of machinery. If I show you that engine rigged up in our test cell or on the wings of a Dreamliner plane, and it’s beautiful, it starts to get your attention.” OK, but can that hydrophobic coatings video truly compete with those photos of cute kittens in my Instagram feed?

Ninth Circuit to Reconsider the Curious Copyright Case Requiring YouTube to Take Down All Copies of Anti-Islamic Film

Posted in Copyright

Earlier this year, Socially Aware noted a peculiar decision out of the Ninth Circuit Court of Appeals holding that an actress owns a copyright interest in her five-second performance in a film and thus could demand the removal of all copies of the film posted to YouTube.

The actress, Cindy Lee Garcia, claims that she had been duped into appearing in the anti-Islamic film, called The Innocence of Muslims.

After the film went viral, Garcia received death threats for her involvement in the project.  While everyone generally sympathizes with her predicament, the Ninth Circuit’s decision creates serious issues for both the entertainment community and online distributors of user-generated content, two industries that seldom share common cause.

Shortly after the three-judge panel of the Ninth Circuit issued its decision, Google sought en banc review by the Ninth Circuit. In “friends of the court” briefs, a broad spectrum of interested parties such as Facebook, Netflix, Pinterest, Twitter, Yahoo!, National Public Radio, the Los Angeles Times, the Washington Post, and the documentary filmmaker Morgan Spurlock of “Super Size Me” fame joined with Google.

Now, eight months after Google first sought en banc review, the Ninth Circuit has agreed to rehear the case. In a procedure unique to the Ninth Circuit, the case will be heard by 11 of its 29 active judges, rather than the full court. The hearing is currently scheduled to take place during the week of December 15, 2014 in Pasadena, California. A decision will likely be issued sometime in early 2015.

Status Updates

Posted in Status Updates
  • Tale of the tape. Remember the 1980s? Back then, watching a movie on demand meant visiting your local video store and renting the video tape version of the film that you wanted to watch (assuming it was available). During that era, Congress passed – and President Reagan signed into law – the Video Privacy Protection Act (VPPA), which generally prohibits any “video tape service provider” from disclosing, outside of the ordinary course of business, information regarding a customer’s rental and purchase of video tapes and similar audio visual materials. The law actually stems from the controversial, and failed, 1987 nomination of Robert Bork to the U.S. Supreme Court, when Bork’s opponents got hold of his video-rental records. As the video distribution industry has evolved, issues have arisen as to the application of the VPPA in this new era. Redbox is famous for its automated self-service kiosks at which customers can rent DVDs and Blu-ray disks; to handle customer inquiries, however, Redbox uses a third-party service provider, Stream Global Services (SGS). So that SGS can fulfill its obligations, Redbox makes available its customer records to the service provider. Does such disclosure violate the VPPA, or does it fall within the VPPA’s exception for disclosures made in the “ordinary course of business”? Several consumers sued Redbox because of SGS’s access to their rental information, but the U.S. Court of Appeals for the 7th Circuit recently found that Redbox is in the clear. The court noted that, in enacting the VPPA, “Congress contemplated customer service as part and parcel of the ordinary rental experience. That Redbox has replaced most live customer service interactions with a computer interface does not change this.” Nevertheless, if your company is in the business of distributing videos online, you will want to pay attention to potential VPPA issues; although narrowly focused, it’s a restrictive privacy law that can become a trap for the unwary.
  • All politics is social. While the 2014 mid-year election has concluded, the involvement of social networks in politics is far from over. A study by the Pew Research Center reveals that Americans are using their mobile phones, apps, and social media far more than ever before to keep up with politicians and elections. For example, whereas only six percent of registered voters reported following politicians on social media in 2010, that number is now up to 16 percent. Both Facebook and Twitter say they embrace this type of use of their networks and, indeed, they see part of their mission as fostering an increase in civic involvement and voter participation. There doesn’t seem to be any association between political party and the use of social media: CNN reports that Republicans and Democrats participate in approximately equal numbers.
  • Bad trip. A new report indicates that, in the United Kingdom, defamation cases based on comments in social media increased dramatically in the past year, from six to 26 – a 333% increase. Among the reasons cited for the surge in defamation complaints: some people’s failure to understand that what they post to social media platforms such as Twitter can be actionable, and some defendants’ concern that their reputation can suffer permanent damage because the Internet permits defamatory statements to be spread quickly and remain online. Not all these cases succeed, of course; for example, the owners of a Scottish bed and breakfast operation have been unsuccessful in their lawsuit against the travel website TripAdvisor over allegedly defamatory reviews hosted on the site. Earlier this year, a Scottish court refused to compel TripAdvisor to disclose who had written and posted these reviews, noting that the court lacked the “worldwide jurisdiction” needed to require U.S.-based TripAdvisor to produce the requested information. Of course, going forward, Europe’s controversial recognition of the right to be forgotten may offer an alternative means for dealing with allegedly defamatory posts.


Status Updates

Posted in Status Updates
  •  Lyfted documents? Uber and Lyft, two ride-sharing companies that are both expanding rapidly and trying to take business away from traditional taxis in cities across the nation, have never been on the best of terms. Their rivalry just found its way into the courts, as Lyft has sued its former chief operating officer Travis VanderZanden, who moved over to Uber as its vice president of international growth. Lyft claims in the lawsuit filed in state court in San Francisco that, when he left, VanderZanden took with him more than 1400 of Lyft’s confidential business documents. The documents, Lyft says, are among its most sensitive and include “historic and future financial information, strategic planning materials like marketing plans and product plans, customer lists and data, international growth documents, and private personnel information.” VanderZanden allegedly backed these documents up to his phone and his computer before he left. Lyft claims that this action amounts to breach of VanderZanden’s confidentiality agreement and fiduciary duty to the company, and says it has forensic evidence to support its allegations. A Lyft spokeswoman told CNET, “We are disappointed to have to take this step, but this unusual situation has left us no choice but to take the necessary legal action to protect our confidential information. We will not tolerate this type of behavior.” Uber hasn’t yet responded to the complaint.
  • Going native. Banner ads have been on the Internet since—well, since there was an Internet. They’re a standard item on nearly any website. But New York Times columnist Farhad Manjoo says that banner ads’ day has come and gone. According to Manjoo, banner ads are clunky and unattractive, they distract the user from his or her Web experience, and practically no one reads them anyway. “The history of the banner ad is a cautionary tale for today’s hot start-ups,” Manjoo writes. “It is a story of what happens when you try to monetize an invention too quickly, before it has gained a wide enough foothold with an audience to create a sustainable, symbiotic business model.” Manjoo says the shift from computer-based websites to mobile apps is going to be the final straw that ends the era of the banner ad. He thinks “native ads” may end up as the ultimate replacement for banner ads. These are pieces of advertising that look like regular content on an app or website. A Levi’s ad on Instagram, Manjoo points out, looks like a regular Instagram posting. A Facebook sponsored story looks like any other post. A promoted tweet looks like a tweet. It’s much less annoying, but as Manjoo acknowledges, it’s easy for an unsuspecting reader to miss the distinction between editorial and advertising content. This blurring has even attracted attention from the FTC, which has warned that deceptive native advertising may be illegal.
  • Boxing out. Twitter has moved the “tweet box” or “compose box” on twitter.com, where users can compose and post tweets, from the left side of its page to the top of the timeline. This seemingly small change appears calculated to make the box more visible and easier to use, thus encouraging more tweets. In the same vein, the box used to include the bland phrase, “Compose new tweet,” but now it says, “What’s happening?” Mashable says that makes it sound a lot more like the phrase found in Facebook’s status box, “What’s on your mind?”

Hot Off the Press: The November Issue of Our Socially Aware Newsletter Is Now Available

Posted in FTC, Internet of Things, Litigation, Privacy, Statistics, Terms of Use

The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we discuss an important Ninth Circuit decision refusing to enforce an arbitration clause in a website “terms of use” agreement; we examine “Operation Full Disclosure,” the Federal Trade Commission’s initiative to review fine print disclosures and other disclosures in connection with advertisements; we highlight a recent case allowing unprecedented service of process via Facebook; we take a look at California’s recent data security breach law amendment, which may impose the country’s first requirement to provide free identify theft protection services to consumers in connection with certain data security breaches; we explore a new court decision addressing ownership issues in connection with Facebook “likes”; and we review the UK Financial Conduct Authority’s draft guidelines on social media.

All this—plus an infographic regarding mobile device and app use.

Read our newsletter.

New California Privacy Law Revisions Will Impact Website and Mobile App Operators With Users Under Age 18

Posted in Privacy

Last year, California made child-related revisions to its Online Privacy Protection Act that have ramifications even for websites and other online services that are not directed to children.  The revision, “Privacy Rights for California Minors in the Digital World,” imposes obligations on any website, application, or other online service that (1) is directed to minors—that is, was created to reach an audience predominantly composed of minors—or (2) has actual knowledge that a minor is using it because, for example, it collects date of birth (each, a “Covered Service”).  Cal. Bus. & Prof. Code §§ 22580-81.  Covered Services are thus not limited to services directed to minors:  even a general audience or adult-directed service is subject to the law if it collects age information and permits those who identify as minors to use the service.  The law does not require an operator to collect age from its users.

The revised law takes effect on January 1, 2015.  It will require a Covered Service to permit a registered user who is a minor to remove content that he or she has posted.  It will also prohibit a Covered Service from advertising adult products to minors and from collecting, using, or disclosing minors’ personal information for such advertising, or allowing others to do so.

The Delete Button Requirement

The law will require a Covered Service to permit a registered user who is under 18 to remove content that he or she has posted to the service.  Specifically, it will have to:

  • Permit a minor to remove, or to request and obtain removal of, content that he or she has posted to the service (“posted” means that the content is accessible to others); and
  • Provide instructions (e.g., in its privacy policy) on how a minor may remove or request removal of posted content, along with an explanation that removal does not ensure complete or comprehensive removal of the content.

Cal. Bus. & Prof. Code § 22581.  The explanation that removal does not ensure complete or comprehensive removal is necessary because the law does not require removal in certain situations, including if another provision of law requires the Covered Service to maintain the content, if it was posted or reposted by users other than the minor, or if the minor received consideration in exchange for the posting.  Cal. Bus. & Prof. Code § 22581(b)(1), (2), (5).  Moreover, the law does not require permanent deletion of removed content.  Rather, a Covered Service may comply with a removal request by:  (1) anonymizing the content so that the minor cannot be individually identified; or (2) rendering the content invisible to others, while retaining it on its servers.

Limits on Advertising

The revised law also prohibits Covered Services from advertising adult products, such as alcohol, tobacco, and firearms, to minors and from collecting, using, or disclosing minors’ personal information for such advertising, or allowing others to do so.  Cal. Bus. & Prof. Code § 22580.  This provision applies to a Covered Service that is directed to minors or that has actual knowledge that the advertising will be targeted to a minor.  If a Covered Service uses a service provider to deliver its advertising and notifies the service provider that the service is directed to minors, then the responsibility to comply with the law rests with the service provider.  Cal. Bus. & Prof. Code § 22580(h)(1)-(2).

What Does This Mean in Practice?

 Each operator of a website, app, or other online service should determine whether it falls within the law’s coverage and, if so, develop a strategy to achieve compliance before the law takes effect on January 1, 2015.  When doing so, we suggest that:

  • If you operate a general audience or adult-directed site or service and you do not have a business need for your users’ age information, do not collect age or date of birth from your registered users on a going-forward basis.  This will limit your need to comply, at least with respect to new users.
  • If you operate a Covered Service and permit users to post information or content (such as through a profile, blog, chat, message board, or similar feature), consider whether you will let registered users who are minors remove their posted content themselves or request to have it removed (or anonymized) by you.  In either case, in your privacy policy, provide notice of the minor’s right, along with instructions and an explanation that removal does not ensure complete removal.  For example:

If you are under 18 and a registered Site user, you may ask us to remove content or information that you have posted to the Site by writing to [email address].  Please note that your request does not ensure complete or comprehensive removal of the content or information, as, for example, some of your content may have been reposted by another user. 

  • If you have actual knowledge that you are targeting advertising to minors, ensure that your advertising does not promote any of the adult products covered by the law.
  • If you have actual knowledge that you have collected personal information from a minor, put policies and procedures in place to ensure that such information is not collected, used, or disclosed—by you or any third party—to advertise adult products.
  •  If you operate a Covered Service that is directed to minors:  (1) do not advertise adult products; (2) take steps to ensure that your users’ personal information is not collected, used, or disclosed—by you or any third party—to advertise adult products; and (3)  inform your advertising service providers that your service is directed to minors.