Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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Lawrence W. Gallick

Social Links: Statehouse v. Smartphone

Federal Court Enjoins California Teen Privacy Law . . . Again

All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

A New California Digital Content Law Establishes New Requirements for Advertisers and Vendors

California’s Assembly Bill 587 Loses Key Provisions After Legal Challenge from X

Here’s how <a href="http://www.theverge.com/2016/5/16/11686112/twitter-140-character-count-limit-change-link-photo" target="_blank" rel="noopener">Twitter is loosening up its 140-character limit</a>.The federal government will now check the social media history of prospective employees before granting them security clearance.One expert says C-level executives <a href="http://fortune.com/2016/05/16/hearsay-social-ceos-social-media/" target="_blank" rel="noopener">shouldn’t entrust millennials with their companies’ social media</a> feeds.Federal court <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2201&context=historical" target="_blank" rel="noopener">refuses to dismiss a lawsuit against Google</a> for allegedly removing sites from its search engine results.Before a larceny arrest, a <a href="http://www.nytimes.com/2016/05/16/nyregion/before-a-larceny-arrest-a-cry-for-help-on-facebook.html?smprod=nytcore-iphone&smid=nytcore-iphone-share" target="_blank" rel="noopener">“cry for help” on Facebook</a>.Do strong <a href="http://adcontrarian.blogspot.com/2016/05/does-content-build-brands.html" target="_blank" rel="noopener">social media campaigns really beget successful brands</a>, or is it the other way around?A lawyer representing students suing Google is questioning the impartiality of the federal judge hearing the case because the judge was just hired by <a href="http://fortune.com/2016/05/19/gmail-scanning-grewal/" target="_blank" rel="noopener">this unrelated tech giant</a>.The New York Times live streamed one of its pitch meetings on Facebook Live, and not everyone thinks it was a great idea.Some social media marketing satire, courtesy of The Onion.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Social Links—Twitter loosens up; case against Google stands; should millennials be in charge of big social media campaigns?

Here’s how Twitter is loosening up its 140-character limit. The federal government will now check the social media history of prospective employees before grant

Social Links—Twitter loosens up; case against Google stands; should millennials be in charge of big social media campaigns?

Social media has allowed aspiring authors, musicians, filmmakers and other artists to publish their works and develop a fan base without having to wait to be discovered by a publishing house, record label or talent agency. And that seems to have made at least modest celebrity easier to achieve. The financial rewards that we usually equate with fame, however, might be just as elusive as they were in the pre-Internet age—perhaps even more so, in an era where content, once posted online, can be exploited by others in ways that typically don’t generate money for the creator of the content.Sure, some hard-working social media stars are scoring big profits based on their popularity. The YouTube channel <a href="https://www.youtube.com/user/CharlisCraftyKitchen" target="_blank" rel="noopener">CharlisCraftyKitchen</a>, for example, which features videos of a young girl making treats and which boasts 29 million views a month, averages monthly ad revenue close to $130,000.The Swedish gamer <a href="https://www.youtube.com/user/PewDiePie">PewDiePie</a>’s net worth is estimated at<a href="http://coed.com/2016/04/04/pewdiepie-net-worth-how-much-is-pewdiepie-worth-money-youtube-star-felix-arvid-ulf-kjellberg/" target="_blank" rel="noopener"> $61 million</a>—a big sum for a guy who is unknown to most people over 40 years old.And, having secured a book deal and endorsement contracts with brands like L’Oreal, self-taught makeup artist/vlogger <a href="https://www.youtube.com/user/MichellePhan" target="_blank" rel="noopener">Michelle Phan</a> is now at the center of a true life <a href="http://www.latimes.com/business/la-fi-youtube-stars-20140808-story.html" target="_blank" rel="noopener">rags to riches story</a>.I suspect, however, that a far more common tale is the one told by Gaby Dunn, co-star of the YouTube comedy sketch channel <a href="https://www.youtube.com/user/justbetweenusshow" target="_blank" rel="noopener">Just Between Us</a>, in a fascinating article entitled “Get Rich or Die Vlogging: The Sad Economics of Internet Fame.”Dunn reports that, despite her channel’s “more than half a million subscribers” and “hungry fan base,” she’s broke and has to take menial jobs to make ends meet.Dunn says that she and her vlogging partner, Allison Raskin, make money from the “ads that play before [their] videos,” and by freelance writing and performing, “but it’s not enough to live, and its influx is unpredictable.”Almost as frustrating as brands not believing that Dunn’s channel is big enough to sponsor are her fans’ reactions when she does score a patron. Dunn’s and Raskin’s third branded video in more than two years resulted in viewer comments such as “Enough with the product placement” and “Gotta get that YouTube money, I guess.” And, as we’ve discussed in <a href="https://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">past blog posts</a>, if a vlogger or other content producer is being paid to endorse a product or service, he or she is generally required to disclose this material connection to his or her followers.In any event, Dunn is hardly the only online content creator feeling the pinch. Even writers who’ve enjoyed full-time positions at large journalism outlets are finding themselves out of a regular paycheck. The popular digital media website Mashable, for example, <a href="http://www.politico.com/blogs/on-media/2016/04/politics-news-and-editorial-video-slashed-in-mashable-restructuring-221683" target="_blank" rel="noopener">laid off 30 members of its staff</a>—including several high-level editors. The current affairs website Salon recently cut back on the number of people on its payroll, too—20 percent of the publication’s editorial staff lost their jobs in April.Things are equally discouraging in the music business; one revealing statistic from the RIAA is that, in 2015, record companies <a href="http://pitchfork.com/news/64345-vinyl-sales-made-more-money-than-free-streams-last-year/" target="_blank" rel="noopener">received more money from vinyl record sales than from ad-supported online streaming</a>.A real challenge for social media celebrities and other content creators is that <a href="http://adage.com/article/digital/google-q4-2015-earnings/302462/" target="_blank" rel="noopener">online ad rates have been declining for years</a>; despite the continued growth of online advertising, there are not enough ads to support the ever-expanding pool of Web content seeking advertiser support.Another threat is the rise of <a href="http://www.businessinsider.com/freebooting-video-on-facebook-2015-8" target="_blank" rel="noopener">freebooting</a>—that is, the practice where a video specifically created for and posted to YouTube is, without the authorization of the video’s creator, copied and uploaded to Facebook, where it may generated millions of views without compensation to the creator.And perhaps the greatest concern for content creators is the increasing popularity of ad-blocking technologies. The use of ad blockers has grown by 41 percent over the past 12 months; there are now nearly 200 million active users of such technologies worldwide. In the United States, an estimated 45 million Americans are surfing an ad-free version of the Internet, resulting in an estimated $22 billion in lost ad revenues in 2015.All of this adds up to form a rather bleak picture for content creators seeking to make a living online; a million social media followers may result in fame, but not fortune. And fame without fortune doesn’t pay the bills. *    *    *For more information on potential legal hurdles for social media celebrities, influencers, bloggers, vloggers and other content creators seeking to make a living online, please see these related Socially Aware blog posts:<a href="https://www.sociallyawareblog.com/2016/05/05/innovative-social-media-marketing-cannot-overlook-old-fashioned-compliance/" target="_blank" rel="noopener">Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance</a><a href="https://www.sociallyawareblog.com/2015/09/17/ftc-continues-enforcing-ad-disclosure-obligations-in-new-media-and-issues-a-warning-to-advertisers/" target="_blank" rel="noopener">FTC Continues Enforcing Ad Disclosure Obligations in New Media and Issues a Warning to Advertisers</a><a href="https://www.sociallyawareblog.com/2014/12/03/ftc-enforcement-action-confirms-that-ad-disclosure-obligations-extend-to-endorsements-made-in-social-media/" target="_blank" rel="noopener">FTC Enforcement Action Confirms That Ad Disclosure Obligations Extend to Endorsements Made in Social Media</a><a href="https://www.sociallyawareblog.com/2015/12/21/influencer-marketing-tips-for-a-successful-and-legal-advertising-campaign/" target="_blank" rel="noopener">Influencer Marketing: Tips for a Successful (and Legal) Advertising Campaign</a><a href="https://www.sociallyawareblog.com/2016/01/05/a-warning-from-the-ftc-on-native-advertising/" target="_blank" rel="noopener">An FTC Warning on Native Advertising</a>

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Show Me the Money: Are Social Media Celebrities and Other Online Content Creators Really Raking in the Cash?

Show Me the Money: Are Social Media Celebrities and Other Online Content Creators Really Raking in the Cash?

Social media has allowed aspiring authors, musicians, filmmakers and other artists to publish their works and develop a fan base without having to wait to be di

With 1.65 billion users on Facebook, 332 million users on Twitter and 400 million on Instagram, it is unsurprising that many companies are seeking to increase brand awareness and customer engagement by running competitions via social media. If you want to avoid attracting the scrutiny of UK regulatory authorities, however, you will want to ensure that your social media competition complies with the <a href="https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html" target="_blank" rel="noopener">Committee of Advertising Practice Code</a> (CAP Code).The CAP Code acts as the rulebook for non-broadcast advertisements in the UK and requires that promotions (including those on social media) be legal, decent, honest and truthful. The Cap Code is enforced by the <a href="https://www.asa.org.uk/Rulings/Adjudications/2015/5/Procter-and-Gamble-(Health-and-Beauty-Care)-Ltd/SHP_ADJ_288449.aspx" target="_blank" rel="noopener">Advertising Standards Authority</a>, the independent regulator responsible for advertising content in the UK. Given the particular challenges posed by social media, CAP has some useful <a href="https://www.cap.org.uk/Advice-Training-on-the-rules/Advice-Online-Database/Sales-promotions-Prize-draws-in-social-media.aspx#.VrpOS03cumI" target="_blank" rel="noopener">guidance on sales promotions: prize draws in social media (Guidance)</a>.If you are running a prize promotion in the UK, it’s important to become familiar with the CAP Code and Guidance to ensure that your competition doesn’t run into legal problems. Here’s a quick overview of some of the key principles set out in the Guidance.<h5>Key Principles Under the Guidance</h5> If you’re organising a promotion on social media, be sure that:<ul><li>the promotion is run equitably, promptly and efficiently;</li><li>you deal fairly and honourably with participants;</li><li>you avoid causing unnecessary disappointment; and</li><li>any marketing communications connected with the promotion are not misleading.</li></ul>In addition, the Guidance advises promoters to comply with the following practices:<ol><li>Include significant information in the initial advert.</li></ol>Significant information includes the closing date, instructions on how to enter and any other restrictions on entry. Depending on the circumstances, other key information could include the start date, the number and nature of the gifts and/or prizes and the promoter’s name and address.There is an exemption for platforms that severely restrict the space of the initial ad, such as Twitter, which limits posts to 140 characters. However, you are expected to include as much information as is practicable.<ol start="2"><li>Include a link to the full T&Cs.</li></ol>All participants must be able to access the full terms and conditions (T&Cs) that apply to the promotion before entry. These T&Cs must provide certain information, which participants must be able to access easily during the promotion period.<ol start="3"><li>Include all eligible entrants when selecting winners.</li></ol>You must be able to demonstrate that a reliable method was used to collect all eligible entries (particularly where the method of entering requires using some feature of the applicable social media platform, such as re-tweeting a post on Twitter).<ol start="4"><li>Select prize draw winners at random.</li></ol>This must be done in a verifiably unbiased way, for example, through the use of a computer process or in the presence of an independent person.<ol start="5"><li>(You would think that it goes without saying but…) Actually award the prize.</li></ol>In addition to awarding any advertised prizes, adequate steps must be taken to ensure that the winner is notified. Calling a winner once, or only announcing the winner once via social media, is not sufficient.If you are running a prize promotion you will need to keep in mind legal issues that may affect the competition in addition to the ones addressed by the CAP Code, such as:<ul><li>Gambling – Ensure that the promotion does not constitute an unlawful lottery under the Gambling Act 2005. Prize draws that are free to enter (or offer at least one free method of entry), generally avoid being so classified under the Act.</li><li>Data Protection – Your collection and use of participants’ personal data must comply with data protection law. Ensure that your data processing is compliant, and include a link to the applicable privacy policy in your T&Cs for the promotion.</li></ul><h5>Platform-Specific Rules</h5>The social media platform that you are using to run your prize promotion likely has its own rules regarding prize promotions. Make sure that you check the platform’s rules before you run your promotion (the rules are regularly updated). If you breach the platform’s rules, then you risk having your account disabled.Here are some of the rules governing prize promotions that you will find in Facebook’s, Twitter’s and Instagram’s terms of use.Facebook<ul><li>Promotions must include an acknowledgement that the promotion is not affiliated with or endorsed by Facebook.</li><li>Personal timelines or friend connections can’t be used to administer promotions. For example, you can’t require participants to share posts on their timelines, or their friends’ timelines, or tag their friends in posts in order to participate in the promotion.</li><li>Pages promoting the private sale of certain goods, such as alcohol, tobacco and adult products, must restrict access to those aged 18 and older.</li><li>Promotion of online gambling, casinos, lotteries and other related activities require prior authorisation from Facebook and are only permitted in certain countries.</li></ul>Twitter<ul><li>Discourage the creation of multiple Twitter accounts, for example, by including a rule stating that participants using multiple accounts will be ineligible to enter.</li><li>The Twitter rules prohibit the posting of duplicate, or near duplicate, Tweets, links or updates, so don’t encourage participants to duplicate tweets. Play it safe by having your competition’s rules state that multiple entries submitted in a single day will not be accepted.</li><li>To help ensure that all entries are counted, ask participants to include an @reply in their updates. This will help ensure that all tweeted entries show up in public searches.</li></ul>Instagram<ul><li>Don’t inaccurately tag, or encourage users to inaccurately tag, any content. This includes requesting users tag themselves in photos when they are not in the photo.</li><li>Promotions must include an acknowledgement that the promotion is not affiliated with or endorsed by Instagram.</li></ul><h5>Conclusion</h5>Running a social media competition can be an effective way to generate attention for your brand. By following the rules, you can help ensure that your brand is trending on Twitter, Facebook or other social media platform for all of the right reasons.

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Mercedes Samavi

Social Media Competitions in the UK: Play Fair