#017 Digital Law Part 2: Is My Business Violating Copyright On Social Media And My Website?

Is It Illegal Or Unethical To Share Content From Other Creators?

This episode is the second part of our two-part series on digital law. Copyright and licensing, attribution, sponsored content, and fraud, these topics aren’t new to media, but how they apply in the digital space can still be extremely confusing. Sometimes it’s still unclear if your businesses are being unethical or downright breaking the law when it comes to content. In today’s episode, Chatterkick CEO, Beth Trejo, and Goosmann Law Firm CEO, Jeana Goosmann, share some of the most frequent violators of social and digital law.

Biggest Takeaways From This Episode

The Reality of Violations:
Copyright violations are some of the most frequent digital violations out there. You could have a piece of content (image, video, gif, audio, etc.) on your website or have shared a piece of content to your social media platform that was created and own by someone else. You would then get an email or letter saying you’re in violation of that copyright and that you owe damages for the length of time that the image was on the site.

There are companies and attorneys that are built to search online for any of their images have been used in any online platforms. They will find that image and you will be served a letter. There are no businesses or industries that are more likely to be served.

Just assume that if you’re using someone else’s content to promote your business (this is what for commercial use means) that you’re going to be violating the Fair Use doctrine.

Images of children 13 and under is another level of danger zone. You are legally required to get permission from their parents. You never know the stipulations of their private life, there could be custody battles or environments involved where using their content may put them at risk. You need to be careful!

Common Social Media Law Violators. Avoid Doing These Things:

Google Image search and download a photo and use it in your social media or on your website.
Download images from Facebook, Instagram or any other social profiles to use on your social or your website.
Assume that you’re covered by the fair use doctrine.
Assume that someone will be okay with you using their content because they posted about you.
Ignore someone who once gave you permission to use a photo but now is revoking that permission.

User-Generated Content Legal Rules:
Make sure that you’re addressing that you will be using UGC submitted to your website in your privacy policy. You need to let people know that you have a plan to use that content and that they are okay with transferring that licensing upon submission. Now that really just covers submissions on your website. If you want to “cross platforms” and pull an image off of social and use it on a website, you need to have documentation of the conversation and confirmation of the transfer of copyright. Don’t take anyone’s word for it that they’re okay with you using their image, even if they did put it on a public social platform.

Keep in mind that users can always decide to revoke permission later on. And in that case, you just need to be polite and remove their image from your efforts.

When In Doubt:

Take your own photos! You can’t violate any copyright if you took the photo yourself.
Make sure that you’re not violating other laws when taking photos like violating HIPAA.
Use a website to purchase licensing to an image. Some sites have a pretty low fee.
Use a public domain image if you really can’t make anything else work.
Check your images on your site. You can reverse Google Image search to see if your photo was pulled from a different source.
Take an image or any piece of content that someone has reached out to you and asked for you to take down. It’s better to be respectful of their wishes instead of waiting for a letter from an attorney.

Influencer Laws:

Make sure that there is documented permission and a clear outline before going down the path of influencer partnerships.
According to the FTC, you HAVE to disclose if there is compensation or remuneration going back and forth between a brand and a person.
You could legally be held responsible as the influencer and as the business in these partnerships. The important part is that you’re not misleading the public at large.
FTC recently fined a detox tea company for not disclosing promotion

Fake Reviews COULD BE Illegal:
Some highly regulated industries may actually be breaking the law: Financial Institutions, Legal, Healthcare

People are very skeptical of reviews. Consumers are savvy and may call you out on it. If you’re being unethical and paying people or trying to game the system, chances are that you could be violating law and just making your consumers question your legitimacy as a business.

Transcript

This text below is a straight-up audio transcript of the episode. In our humble opinion, we think the audio podcast sounds much better in its original form. We have not edited the transcription below so there are indeed some grammar errors (some quite funny, in-fact).

Welcome back. We are back with our two part legal series with Jeana Goosmann of Goosmann Law Firm and she is an author, speaker. We're so excited to have her. Our first podcast was really about web accessibility. Today we're going to talk about copyrights and how you find images for social media and can you use them. So we're really excited to talk to you today, Jeana. So welcome to the show. Well thanks for having you back, Beth. I'm really excited to be on again and looking forward to talking more about copyrights and how people can make sure that they're safe when they make designs. Yeah. And so if you haven't listened to the first part of the series, definitely go back and check that one out. Today we're really talking about images and photos and I think, you know, being a social media agency, that's one of the questions that we do hear a lot from our clients is just where do I get the images, right?

We always recommend taking the photos, but sometimes that's not always an option. So let's say that our clients or businesses need to use an image. That content is typically protected in some way or another. But how do you know what you can use as a business owner specifically? Well, this is a real big danger zone, quite frankly. And we regularly get letters where people are violating others' copyright and they've got an image on their site that they didn't know was protected that somebody else is claiming rights to. And as a result, they now want to get paid damages for the length of time that you've had that up on their site. And so it's a real issue. And I think the best way to know that you're safe and using these first, obviously create your own content, take your own, easiest, that's the easiest.

But otherwise there are sites that you can pay and have access and get the licensing for those images. And I think if you go to one of those sites, that's probably your safest bet because then they're giving you some assurance and you're getting some licensing with that. Right? And so let's talk about the absolutely do not do, where I see all the time like offenders and I just want to make sure that you know, we hear it from you as well. Just Google image searching something, right? You just Google image search a car, right and you click the images and all of these cars come up and you want to have a picture of a car. Is that something businesses should do or like what? What's the risk that they're putting themselves at? That is not something that they should do because I think there is in particular there is a company that has figured this out where if there are people that will just Google image car and their images come up first and those are the companies that are sending those demand letters that say I want to be paid for my licensing.

So they have figured this out that people are just Google imaging things and then you pull their image and use it and boom, they send you a demand because they have figured out that that's what people want to do. You also do not want to just go on Facebook and use people's private, right, because you're violating the Facebook rules. Say you can't do this for commercial purposes. You don't just want to go on Instagram and steal other people's pictures. You want to make sure that you're getting from a legitimate source. And I think the best way to do that is to use one of those sites that I'm sure you could rattle off for everybody. Yeah, you can make sure that the images that you're buying and they're not very expensive either. I think they have a pretty low fee through that. You're getting licensing, right.

And do you feel like there is a such thing as a royalty free or a creative common license? I know that a lot of the kind of lower cost stock photo sites have that availability. So there is such thing that's called public domain, which would be royalty free. And there's also the fair use doctrine, which is a very complex legal doctrine. And we don't have time to get into that. It'd be like a whole law school class here, but so those things do exist. But I think there are so many exceptions at that. The copyright information, you should just assume if you're using it for commercial purposes that you're not going to fall under the fair use doctrine. And as a result, I would not recommend, I've tried to rely on those doctrines. That is probably beyond the scope of what you're trying to do if it's for your business.

Right. And I think that a lot of people don't understand how easy it is to find the image on your website that you used. Right? There is a reverse Google image search is like a basic tool, but there's lots of other ones out there, but you literally can upload an image into Google and say, where else on the internet is this image found? And so obviously these companies are being able to find where those images are very easily. There are, and they have full staff. So people that that's their job is to go find the violations because they also employ legal departments that that's those lawyer's job to send out these demand letters cause they make a lot of money by people just using their images. Right? And small businesses, medium size doesn't really matter. Industry, it's, it's anybody that has images, right?

And your website's probably gonna have pictures on it. Absolutely. And I've seen a lot of small businesses be targeted with this and this has been going on for decades too, by the way. And it's still going on today. So people stop using these images, right? You are making your lives more difficult to just by like randomly grabbing the latest image that you find. I think a lot of people just think, well, I'm not going to get caught. Right. And we probably get one a week. That's crazy. Right? I mean, that's how prevalent it is. And we're based in Iowa, Nebraska and South Dakota. We have 30 lawyers and we probably get at least one a week. So yeah, definitely an issue. Right? And I think that people also need to think about on the social sites, right? So tell me a little bit about User Generated Content.

Right? We deal with that a lot in social media and it in many cases it's, is "public content". What are the best practices or legal rules that you guys see with User Generated Content or UGC as we love, lovingly call it. So I think when you have this sort of content, this is going to get us back over to our privacy policy a little bit. You want to make sure that you're addressing these issues and your privacy. So if you're going to be reusing User Generated Content, you want to make sure that people know that you have a licensing and you plan to reuse this content. And we get this asked a lot too when it comes to those recommendations that people are posting, can I pull the recommendation off of the social site and posted over on my website? And I think that's when you want to make sure that your policies that you have on your sites are allowing that, right.

And do you feel like, is it helpful if there's documentation of that, let's say transfer of copyright. So if you ask somebody, can I use your image? And they say, sure you can. Would you want a screenshot that kind of, or document that somewhere so that if you ever did have somebody come back to you and there'd be a plan at least of how that copyright may be transferred. Absolutely. So document document, document like lawyer's best friend and be careful what you document, too. I always say the reverse of that, right? Don't send text messages or emails if you don't want it to be Exhibit A. You get one of these requests of "stop using my content." Be careful how you respond, but I think that asking permission is always the best course because if you're given permission, that is the number one defense to a leader, a claim saying that I don't want you to have that up on there.

And then if it's later also somebody does come back and request, I want you to take this down for whatever reason. I think it's always a good idea too, to be respectful of that. And if you're not, then you could run into an issue later because did they revoke permission? Right. I think that's really, you know, a lot of peoples, especially photographers, they just want the credit. So like sometimes just having that conversation before you just steal somebody's images is like the best case scenario and sometimes people are willing to let you use their images if you just give them credit and you kind of showcase them, just that conversation is a really good spot to start that, that dialogue of okay who's images this, how are we giving this person credit? And I mean if you're in marketing or you know, you guys are, your business is documenting and sharing images, this is kind of a thing you need to know, right?

Like it's not just something that the, you throw on the intern. It's not and especially too, if there's images of people and potentially images of children, right? Cause you're getting in it where if they're 13 or under it, that's like a danger zone and you want to make sure then you have parent permission. There's all kinds of issues where people have, you know, custody battles out there. I don't necessarily want their images of their children out on social or internet. And so you need to be careful, especially when you're dealing with pictures of people. Right. And or probably, if you're in a business or an industry that it's maybe a little bit more sensitive, right? Like health care, like you said, child care or there's lots of other probably, other like HIPAA stuff that kind of comes into play with images itself. So definitely something to be cautious of and really understand what rights and rules your business needs to kind of comply to.

Absolutely. So if you're on a, you know, a potentially controversial topic with your business and then you posted somebody's image on there, I think that they might have a defamation or slander claim because you've put their image associated with that. So in addition to the actual rights of who took the picture, you're opening yourself up to a whole nother bunch of issues that you don't really anticipate having to deal with. Right, right. That can happen too if people even just comment on your, on your content and all of a sudden you've brought somebody into a, an area that they weren't anticipating and now they want to point the finger back at you. Yeah. Let's talk a little bit, when you like the influencer world, right? The FTC has done a little bit of clarification about sponsored content. If you're on Instagram and you're looking at those influencers, you may see #ad or #sponsored. What is the best practice and can you tell us more about what you're seeing specifically on that, like disclosure and what, what are the rules?

Yeah, so this is an ever-changing area, I think in something that people are just now getting in touch with because there are also, it's driving the whole area where we're getting more counterfeits because people are, the influencers have so much impact, right? And so there's a ripple effect when people are influencing your brand and creating demand in this area. So I think that first of all, you want to have permission before they go down that path. And then second, as we're looking at these FTC rules and guidelines for sponsored content, it's, it's important to make sure that you're disclosing things. And what kind of disclosures do you need to give if there's compensation or renumeration going back and forth between why you're promoting something versus is it just naturally like, I'm a huge fan of XYZ product, but I'm not a designated influencer and I'm not being paid to promote something here today.

And at some point in time, I think those influencers themselves need to make sure that they're aware of what the laws are and then the marketers that are hiring them too, because that's a slippery slope. If you're hiring somebody and you know that they're violating the law, you don't want to be somebody else that they could come back and say is violating an issue. That's what I was wondering. Especially like, again, I'm kind of putting this on the local level, so on that local kind of playing field, the business then also needs to kind of work with whoever they're providing the product to or giving free swag to because it's a little bit on them? Is that kind of what you're saying are definitely a cautious standpoint that you need to kind of take? Yes, I think so because if you know that they're not doing a lot of disclosures and complying, I think it is a little on you and you could be held responsible as a result of that.

But again, a lot of this is dealing with Instagram and a lot of new regulations, so I would definitely be cautious there. We haven't seen a lot of cases come down in this regard yet, but it is a new area and you want to make sure that you're not misleading the public or misleading consumers because that's really what the government and people are concerned about is that you're misrepresenting and they're going to be basing their own decisions on something that's really false. Right. I think there's so many people out there, especially young people that just want to be influencers. And I think it is important that they know that the second that they're taking something and you know, pushing it out there to people, like you, it's, it kind of is a business at that point and you need to make sure that your risks are analyzed and you kind of have a heads up on at least what your responsibilities are.

And sometimes, they probably are as simple as putting #ad #sponsored content, but you don't want to get yourself too far in trouble when you're young and you know, just trying to start everything up. Exactly. So all of a sudden, once you're being paid, paid to play, right. And once you cross that divide, I think it's important to realize what your responsibilities are and make sure you're using the right hashtags and you're not misleading your, your followers and they'll appreciate that too. Right. Okay. Last topic. Let's talk a little bit, I mean, illegal or unethical, right? There's definitely some lines to this, but what about like fake reviews on social or like brands that buy reviews or likes on social media. Is that more of an unethical practice or is there actually some legal implications, I can't say that implication implications for people.

I think when it comes to that, whether there's going to be legal implications, it might depend upon what their area of businesses. So I think if you are in the financial institution world and then you're doing that, there's going to be all kinds of regulations that you will have violated. Similar with legal lawyers are highly regulated and what they can do with advertising. I think the same would be true in the medical profession. So when, whether it actually crosses into being illegal or not, I think it will depend on what kind of content it is. If you're just promoting makeup for example, it might not be illegal but you're probably in the unethical category. Right? And that people are going to get to know is this a brand that they can trust. And I think right now there is so much counterfeit product out there and fake this and fake that that people are really looking for what can we trust online and if you're tarnishing your reputation because you're doing unethical things, I think the consumer is becoming really savvy and you're going to get called out on it.

Oh 100% it's so interesting to you, even when you're just kind of searching on different products you can so spot the fakes, it's like two goods, one bad two goods, one bad. And it's like, okay, these are all not real reviews because they're just playing the game of trying to change your mindset and not really giving you feedback on the product or the service. And I think that people can see right through that. Right? It's such an easy target to be like, okay. And, and I think that is sways the opposite direction of trust like you mentioned. And isn't it the same with, I mean you could buy followers on Twitter too and all of a sudden now people are like, well who can you really engage with? Right? Because if you have a high number of followers but you have low engagement, the brands don't really care and they don't really think you're an influencer.

Right, exactly. It's kind of like I'm too good to be true. Yeah, exactly. Well thank you so much. We really appreciate such great information. I think that just the ideas and things that we want to get people thinking about, like watching your images. Best as take your, take your own, use the content that you create. If you need to use stock photos, use it from a reputable site and there's probably going to be some sort of a, a fee involved because you're transferring that copyright. And then just with the influencer space and you know, even just reviews, be authentic. Make sure you know the rules specifically within your category and hopefully our brands and influencers will be off to a great start. Thank you, Beth. All right, thanks so much.

This is the second part of our two-part series. I have Jeana Goosmann with Goosmann Law Firm and I'm so excited for you to hear this. Lots of really great takeaways. We're shifting gears in the second episode to really focus on the social media space, talking about content, copyright, licensing, attribution, sponsored content, and really how you can be your most authentic self and not generate fake reviews. So excited for you to listen to this and enjoy. Welcome today we have Jeana Goosmann. This is a two part series. Our first part, we really wanted to let all of our listeners understand and know a little bit about web accessibility, what it means for them as a small business or a large entity. And really just to get people thinking about the questions they need to ask themselves before they're developing a website with their current site and not really scare them, but we want them to, that these are real things and these aren't just, you know ideas that we're trying to sell, right? This is just, it's a fact of life of where we're at right now. So really excited to show you what we have in store.

Perfect. Okay, so now you want me to do the second one? Yeah. So now you'll jump into, so like the sound, we'll just go for the second one. So he'll just jump straight into like, this is part two. You have to introduce yourself and Jeana. Again, I kind of put like a little blurb about her. You don't, I don't think you have to do a full login, but definitely make sure that you give a little bit of a background and then let her talk. So people like reacting to their voice cause they're not going to come out like back to back. There's going to be like two weeks in between.

Social MediaChatterkickMarch 10, 2020law, social media tip