Legal Tips and Updates – Streaming.Lawyer

Hashtags No Longer Protect Influencers. Actually, they never did!

Influencers and brands must clearly disclose their relationship. The Federal Trade Commission (FTC) notified influencers earlier this year that simply using a hashtag like “#sp,” or words like “Thanks [Brand],” or “#partner” in a social media post is insufficient to comply with FTC laws. Recent events like the Fyre Festival and related $100M class action lawsuits, have raised the visibility of the issue of influencer promotion and FTC compliance.

To all my friends who are influencers. Beware. Formal notice has been given. You must “clearly and conspicuously” disclose all endorsements for consideration.

Learn more about proper influencer/brand hashtags in this post by the FTC. Click here to learn more about your obligations under FTC law as an influencer.

Related Posts

Social Media Influencer Liability by Mitch Jackson

Influencer Marketing- Tips for Influencers, Social Media Agencies, Brands and Consumers by Mitch Jackson

Do The Right Thing In Your Social Media Community!

Do The Right Thing on Social Media

Each of us must rededicate ourselves to serving the common good. We are a community. Our individual fates are linked; our futures intertwined; and if we act in that knowledge and in that spirit together, as the Bible says: “We can move mountains.”

-Jimmy Carter

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My first website went up in 1996 and over the years, I’ve experienced good things on the Internet, social media, and digital platforms.

I’m a fan. I “get it” and enjoy the technology dance. The platforms we all use allow us to add value to others, build relationships, and show our human side. It’s an amazing time to be alive.

But during this same period of time, I’ve also personally observed a tremendous amount of online fraud, crime, and wrongdoing take place. And this bothers me.

Just over the past two years on social media I’ve watched more than one dishonest business person use his or her “fame” or “influence” to mislead others and take thousands of dollars from other people.

Over the past two years on social media I’ve observed the harm caused by a social media influencer (who at the time also happened to be a convicted registered sex offender with 300k+ followers on Twitter) and and his online “friends” by initiating and encouraging a misguided social media feeding frenzy resulting in false defamatory statements being made and harming the reputations of good hardworking people.

Over the past two years on social media, I’ve observed multiple people, including a well know Snapchat user, arrested for alleged crimes involving child pornography.

Over the past two years on social media, I’ve watched people steal other people’s ideas, clients, trade secret list, and even entire websites from hard working digital business owners.

And over the past two years on social media, I’ve watched and read about careless people causing harm and death to others because they tried to live stream or update their social media status while driving.

Speaking of distracted driving, during this same period of time, I’ve been retained to help numerous people harmed by the careless distracted driving of others. This included a family who’s grandmother and two-year-old granddaughter were both killed by a distracted driver. Even my own son, Garrett, lost two of his soccer teammates to reckless distracted driving.

Both of my kids have been hit from behind by distracted drivers. My daughter, AJ, had her car totaled and Garrett had major damage to his car. Both were injured but are doing better today. It’s because of these very personal experiences that Garrett and I started StopDD.Today.

Looking back on all of these situations, the careless and often times intentional conduct of these wrongdoers is inexcusable and pathetic. This type of conduct should never be permitted or condoned!

But too often it is. Too often people who know the facts simply look the other way.

That’s not OK.

Because there is no place in my life for people like this, I’ve already unfollowed, blocked, and stopped supporting what these people are doing. I’ve advised my clients to do the same. After you read this post, I hope you do too.

Online Community Neighborhood Watch

Nobody is perfect. We all make mistakes. I know I do. Maybe you do too.

But there’s a big difference between people who work hard, do their best and sometimes fall short and make a mistake and others, who intentionally try to harm and deceive other people. This is especially true when crimes are committed.

Some friends of mine have taken the position that we should live and let live when it comes to our social media communities. They tell me not to get involved. Just look the other way and forget about it.

I understand what they’re saying and normally this is my approach when it comes to the “little” things in life. I’ve got more than enough on my plate to keep me busy for many years to come.

Having said that, I think it’s important to appreciate who really benefits, and who is harmed, when there are no consequences and wrongdoers are not held accountable. I explore that last statement further below.

In the offline community we’ve lived in since 1991, we have a neighborhood watch. Our neighbors and friends all look out for each for each other and the system works pretty well.

neighborhood 600

Just two weeks ago I posted some pictures on Facebook of all of us hanging out in front of our homes during a Friday evening neighborhood block party (above). What I didn’t mention is that later that night one of our kids noticed a teenager from a party down the street try to steal a skateboard, speaker, and several other items from our neighbor’s open garage.

Continue reading “Do The Right Thing In Your Social Media Community!”

Facebook Live Audio Copyright Issues: Things You Need to Know!

The rollout of Facebook Live Audio is awesome. It offers a new way to communicate, in real time, with our clients, customers, and audiences, using our mobile devices. Click here or on the image above to listen to my first Facebook Live Audio.

Intellectual Property Rights

While Facebook Live Audio provides all of us with a new free audio based broadcasting tool, it also exposes uninformed users of Facebook Live Audio to place themselves in legal jeopardy for violations of Intellectual Property (IP) and specifically, copyright right laws. In this post, I share some of the issues I’m already watching and listening to and, others I anticipate in the future on the Facebook Live Audio platform.

For example, if you read or play original content created by someone else, for any reason and for any length of time, you may be in violation of the creators IP rights. This includes reading a book, blog post, or playing music in the background. The easy solution is as follows: If you didn’t create the content, don’t use it without the written permission of the owner or person with legal use rights.

Yes, there is the Fair Use Doctrine that permits the use of someone else’s copyrighted material, but the exceptions are narrow and the law is gray. Don’t count too much on this exception protecting you unless (1) your lawyer is better than the other side’s lawyer and (2) you have more money than the other side to win your case in court (sarcasm).

Terms of Service (TOS) Agreements

Facebook has a Terms of Service (TOS) Agreement that applies to Facebook Live Audio. It prohibits users from violating the copyright of others. It’s part of the DMCA Safe Harbor provisions that protect Facebook and not you.

If you go live and share copyrighted material, you may be liable to the creator of the content and, you may also be in violation of the TOS Agreement. Facebook can suspend your account or shut you down for a violation of its TOS Agreement.

If you repurpose your Facebook Live Audio broadcast on other platforms like Twitter, Linkedin, Instagram and Snapchat, their TOS Agreements allow for the same action. Depending on how and why you use your social media platforms, this could be devastating to your reputation, success, or business.

Music

If you play music during your Facebook Live Audio and didn’t get permission from the creator of the music (writer, band, license holder, management company), you will in all likelihood be in violation of a copyright. This includes background music or using Facebook Live Audio to share an evening of live karaoke which I see all the time with livestreaming video. Keep in mind that just because everyone else is doing it doesn’t make it right or legal.

Similar to the TOS Agreement mentioned above, if you go live from a concert or stadium and share protected music with your audience, you’ll probably be in violation of one or more intellectual property rights. While the venue may have secured a public-performance license through ASCAP or BMI (songwriters’ associations), and may have the legal right to record and play the music, you don’t.

In addition to copyright issues, there’s also a valuable “right of publicity” that an artist may be able to protect. Under this theory, Katy Perry may argue her voice or music played in the background during your Facebook Live Audio is part of her image or brand, and only she has the right to benefit from that image or brand. This is a relatively new and untested area of law. It appears to me that artists such as Katy Perry would be on strong legal grounds should they decide to hold offending Facebook Live Audio users liable.

Other legal arguments musicians and bands may assert for the unauthorized use of their music during a Facebook Live Audio include violations of the “Lanham Act” (confusion or dilution of a trademark through unauthorized use) and “False Endorsement” (implies that the artist supports a product or your broadcast).

Pro Tip: Create Your Own Brand Sound and Music

If you’re looking to compliment your Facebook Live Audio or business branding with music or sound, avoid all of the above hassles and create your own!

I recommend you take a close look at Signature Tones. It’s a sonic branding studio that works with organizations to create and use music and sound to establish a unique and memorable identity. Created by friend, marketing strategist, international sales and marketing speaker, and bestselling author David Meerman Scott and recording artist, live music performer, and music creative director Juanito Pascual, Signature Tones is your one stop solution to creating an audio brand you own and that your audience will never forget.

Conclusion

We tell our clients not to use any audio, including music, during their Facebook Live Audios that they did not create or, obtain permission from the creator or owner to use. When they claim that the Fair Use Doctrine will protect them, we remind them of the limited scope and protection this doctrine provides.

Best practices are to (1) get permission before using someone else’s audio content or (2) use licensed or royalty free audio (for example, services like Shutterstock).

Facebook Live Audio is a fantastic tool. Enjoy it and use it often. But when you do, respect the IP rights of all sounds, music or other material that you directly or indirectly share over the platform.

TheShow.live (my weekly live video show). Last week’s topic: “How to Use Facebook Live Audio” with Jennifer Quinn and Rachel Moore

Social Media Day San Diego- June 30th!

Join us June 30th for “Social Media Day San Diego” at the beautiful Bahia Resort Hotel on Mission Bay!

In addition to #SMDaySD taking place at one of the most stunning venues in Southern California, Tyler Anderson and his amazing team at Casual Fridays, have put together an outstanding lineup of social media experts who will be sharing the latest tools, tips and approaches.

As for me, I’ll be sharing 30 years of legal tips to show you exactly how to to use social media, livestreaming and the other digital platforms in a way that will help you, and your company, avoid unnecessary legal hassles.

Want more info? Ready to get your tickets? Visit SocialMediaDaySanDiego.com today!

Influencer Marketing- Tips for Influencers, Social Media Agencies, Brands and Consumers

Earlier this year I shared a post, “Social Media Influencer Liability.” It focused on legal liability issues facing influencers and shared tips to help them make smart decisions.

Based upon what recently happened with the Fyre Festival, I thought I’d share these additional legal tips to help everyone in the process protect themselves. Different players in the promotion and consumption chain have different levels of liability exposure and so I hope you find these tips useful.

Things Brands Should Think About

If using a social media agency as an intermediary, enter into a written influence marketing agreement with the agency. In addition to all the standard terms and conditions, make sure your agreement also contains the following clauses:

Clearly state that the social media agency is responsible for the influencer being made aware, in writing, of and following all local, state, and international marketing rules and regulations. This includes FTC requirements.
Specify what the social media agency and influencer can and cannot do. While you want to give the influencer flexibility to do what he or she does best, you also need to set clear boundaries as to what is and is not permitted.
Specify that the social media agency and influencer both secure liability insurance.
A liability waiver and indemnity agreement should be part of your agreement. Thus, if the influencer breaks the law or acts in a way the creates liability, and you get dragged into a claim or lawsuit, the social media agency and influencer both agree to provide your defense and reimburse you for all claims, expenses, and damages.

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THE FYRE FESTIVAL: This Wednesday on TheShow.live

This past Wednesday on TheShow.live we shared social, legal, and influencer perspectives on the disastrous Fyre Festival. One of our guests was there and shared his on the ground first hand experience. Click here to watch the recorded show.

Not familiar with what happened at the Fyre Festival event? Here’s a short video from Mashable that tells part of the story. I think the music makes the video 😉 (click here or on the image to watch).

So what really happened? Was this an honest case of overreaching by the promoters of the event or simply another very public example of social media and Internet fraud at its finest?

Digital analyst, speaker, and author, Brian Solis, had this to say on Facebook (also see the spirited conversation in the comments below Brian’s post).

Continue reading “THE FYRE FESTIVAL: This Wednesday on TheShow.live”