Intellectual Property

Intellectual Property Protection on Social Media

Intellectual Property Laws and their Application to Social Media

In the age of the internet, the lines of intellectual ownership are often blurred, and constantly at risk. When content and images can be copy and pasted with a few keyboard strokes, protecting your brand and its equity can be challenging.

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Protecting Your Intellectual Property on Social Media

A business can protect its intellectual property on social media by taking the following steps:

  • Assumed name certificate: If your business operates under an assumed name or DBA, file an assumed name certificate with the Secretary of State to serve as proof that your company has the legal right to use that specific name.
  • State and federal trademark protection: Register trademarks for logos, assumed names, taglines, product names, etc. to legally protect them.
  • Copyright registration: Register copyrights for original content such as photos, videos, and written materials.
  • Licensing agreements: If you decide to monetize your intellectual assets, enter into a licensing agreement with the other party.
  • Regular monitoring: Monitor social media platforms for unauthorized use of your intellectual property, such as imitations of your logo or brand name.
  • Takedown notices: Send takedown notices to social media platforms when your intellectual property is used without permission.
  • Legal action: Take legal action against individuals or companies that use your intellectual property without permission.
  • Educate employees: Train employees on the importance of protecting your intellectual property and establish employee guidelines for using social media.

Acquire and Maintain the Rights to Your Business Name and Social Media Handles

Because a business name establishes your brand and provides the foundation upon which you will build goodwill, ensure you acquire and maintain all the rights and protections to your business name.

Trademark registration puts other business entities on notice of your rights to an assumed business name. It can also establish an enforceable cause of action against entities that infringe on your trademark after its registration. Our social media attorneys can guide you through the trademark registration process at both the state and federal level.

Once your trademark is approved, you'll need to monitor its use and enforce your rights if necessary to ensure that the trademark remains valid.

Copyright Protection for Social Media Assets

Copyright law provides protection for original works of authorship, including both published and unpublished works. In the context of a social media, the following types of assets can be copyrighted prior to publishing or sharing online:

  • Literary works: This includes written materials such as blog articles, white paper reports, manuals, and training materials.
  • Musical works: This includes compositions, lyrics, and sheet music.
  • Dramatic works: This includes plays, screenplays, and multimedia presentations.
  • Pantomimes and choreographic works: This includes TikTok dance routines and other types of performances.
  • Pictorial, graphic, and sculptural works: This includes photographs, illustrations, infographics, maps, and logos.
  • Audiovisual works: This includes podcast episodes, TikTok videos, webinars, and video presentations.
  • Computer software: This includes both source code and object code.

It's important to note that for a work to be eligible for copyright protection, it must be original and fixed in a tangible form. Additionally, a work must meet certain minimal standards of creativity to be considered original.

Copyright protection begins automatically when the work is created, regardless of whether it's registered with the United States Copyright Office. However, registering your copyright provides certain legal benefits, such as the ability to bring a lawsuit to enforce your rights. Our social media and intellectual property attorneys can guide you through the process – from verifying eligibility and filing the application to working with the Copyright Office to acquire your certificate of registration.

A Note about Social Media Platforms’ Terms of Use: TikTok, YouTube, Twitter, Facebook, etc. require that you agree to their terms of use or terms of service prior to using their platforms. When you create, post, or otherwise make content available on the platform, you often grant the platform and its users a non-exclusive license to use, reproduce, adapt, and disseminate your content.

This does not mean your work can be used without attribution. Your social media attorney can advise you on how best to protect your creative work on social media. For example, you can use watermarks, disclaimers, or notices to clearly indicate your ownership and rights.

Licensing Agreements for the Use of Intellectual Property on Social Media

A licensing agreement gives permission to one party (the licensee) to use the intellectual property (such as a brand, patent, software, technology, logo, or trademark, etc.) of another party (the owner or licensor).

In the context of social media, a licensing agreement can be used to grant a company the right to use certain social media assets, such as a specific social media handle, a logo, or a trademark. The agreement should specify the terms and conditions of the license, including the duration of the license, the geographical scope of the license, and the specific rights granted to the licensee.

Our social media attorneys can help you draft and negotiate licensing agreements and enforce the licensing agreement if it is violated.

Defend Your Intellectual Property From Unauthorized Use on Social Media

To preserve exclusive rights to trademarked or copyrighted material, you should take prompt action to address any infringements. Actively monitor the internet and social media for unauthorized use of your trademarks, business name, or other copyrighted materials:

  • Set Google Alerts;
  • Use social media monitoring tools;
  • Check for domain name infringement by searching domain name registrar sites; and
  • Manually search the various platforms.

If you believe that your trademark or business name is being used without authorization, speak to a business attorney with experience in social media law. Your attorney can advise you on the best course of action.

You and your attorney can take action to defend your intellectual property from unauthorized use on social media:

  • Send a cease-and-desist letter: If you believe that someone is using your intellectual property without authorization, consider sending a cease-and-desist letter. This is a formal demand to stop the infringing activity.
  • Report infringing content: Most social media platforms have processes in place for reporting infringing content. If you come across unauthorized use of your intellectual property on a social media platform, you can report it to the platform and request that it be removed.
  • Take legal action: If the infringing activity continues despite your efforts to stop it, you may need to take legal action. This could involve filing a lawsuit or seeking an injunction to prevent further unauthorized use.

It's important to act quickly when your intellectual property rights are being infringed on social media, as unauthorized use can cause harm to your brand and reputation. The specific actions you should take will depend on the specific circumstances. Consult your social media law attorney for guidance.

What If You Are Accused of Trademark or Copyright Infringement on Social Media?

Trademark infringement claims are often raised against defendants alleged to have caused confusion in the marketplace as a result of using the same or similar incarnations of a trademark.

Our social media and intellectual property attorneys can raise several defenses against infringement claims, such as:

  • Challenging the likelihood of confusion: Our attorneys can argue that the risks for consumer confusion is low, such as when businesses operate in distinctly different industries or other states.
  • Fair use / collateral use: The fair use defense may be raised against infringement claims, provided that claimed parodies (artistic and editorial) were not used for commercial purposes. Collateral use may also protect defendants who use trademarks as part of larger project or product, provided its use does not deceive consumers.
  • Prior use: Prior use of a trademark before its use by the claimant, often in a particular geographic area, may afford the original use the right to use design, words, or combinations regardless of trademark.
  • Doctrine of Laches: The doctrine of laches refers to a claimant’s unreasonable delay in bringing a claim. As an affirmative defense (or justifiable excuse), it asserts the claim was not brought quickly enough and is now out of time.
  • Estoppel: Like the doctrine of laches, the estoppel defense argues that the claimant was slow to bring the infringement claim and their silence indicated tacit submission to the other party’s use of the trademark.
  • Unclean hands: This defense may be raised when a claimant otherwise entitled to relief acted with purposeful ill-intent, such as fraud, deceit, unconscionability, or bad faith.
  • Congestible registration: This may be an appropriate defense in cases contesting exclusive use of a new trademark (one that has been in use for less than five years).

With extensive experience handling infringement claims and intellectual property disputes, our social media lawyers are ready to defend your rights.

Protect Your Most Important Social Media Assets. Safeguard Against Claims.

Hendershot Cowart P.C. offers startups, established enterprises, and all businesses in between with personalized, experienced-driven counsel and representation in social media law. Backed by decades of experience in business law, litigation, and intellectual property matters, our firm is available to discuss your IP and social media concerns, and how we can help.

Call (713) 909-7323 or contact our team online.

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