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About Jeff Schultz

Partner and Chair, Social Media Practice Group

Writer, speaker, and advisor on non-compete agreements,

trade secrets, computer tampering and social media

Accomplishments

• Recognized by the Missouri Bar for inclusion in the "2011 Pro

Bono Wall of Fame“

• Named a "Rising Star" by Missouri/Kansas Super Lawyers®

(2011)

• Named Chair of The Missouri Bar's Technology & Computer

Law Committee.

• First place winner in the Bar Association of Metropolitan St.

Louis First Annual Trial Advocacy Competition.

Who Owns You? Content in an Interactive

World May 22, 2012

Jeff Schultz

Partner, Armstrong Teasdale LLP

Chair, Social Media Practice Group

Armstrong Teasdale Social Media

Practice Group

Intellectual Property Rights Potentially

Implicated in Social Media Postings

Copyrights

Trademarks – Lanham Act Section 45 (15 U.S.C.

1127); MO Rev. Statutes Ch. 417

Trade Secrets – Uniform Trade Secrets Act; MO Rev.

Statutes Ch. 417

Contractual Rights

Copyrights

Copyright protection is available for original works of authorship

Everything you create as an original work has an inherent copyright attached

Examples include: blog posts, tweets, web sites, advertising material, music

Joint Works (2 or more authors)

Works for hire (created by employee)

U.S. Copyright Office Circular 66 expressly considers “Online” works

Ways to Secure Rights

• Proper use of Copyright Notices (© 2011 ABC Corporation)

• Copyright Registration

Copyrights –

Notice/Registration/Infringement

Notice of Copyright:

• “Copyright”, “Copr.”, or “©” + name and year of first publication

Registration:

• allows you to bring an infringement action and provides the opportunity to recover Statutory Damages

Duration:

• Life of Author, plus 70 years

• Works for Hire – 95 years from publication, or 120 years from year of creation, whichever first

Infringement occurs when an owner’s rights are violated

• Copying the original work

• Creating new work derived from the original

• Distributing original work without permission

• Performing/displaying without permission of owner

Copyrights – Defenses

Fair Use – A legal license

granted by the courts to

advance the public interest.

Generally includes use of

protected work for news

reporting, educational

purposes, commentary

and/or parody

Copyright – Defenses (continued)

Digital Millennium Copyright ACT

(DMCA) Safe Harbor – 17 U.S.C.

Section 512

• If material is made available online by a

person other than the service provider

and the service provider responds to

remove or disable access to the

infringing material upon notification of

infringement, the service provider is not

liable for monetary relief.

• Applies when:

• Carrier does not know when it is

carrying infringing material

• Carrier does not receive a financial

benefit directly as a result of the

infringing material

• Carrier conforms to notice and take

down procedures

Trademarks Trademark includes any word, name,

symbol, or device which a person uses in commerce to identify and distinguish his or her goods, from those manufactured or sold by others

Ways to Secure Rights

• By Proper Use of the Trademark in Commerce

• Federal Trademark Registration (® vs ™ )

Strength of the Mark

• Must be “distinctive” in identifying the owner as the source of the goods or services

Types of Marks

• Logos, Company Name, Phrase, Symbols, Colors, Sounds…

Trademark Infringement:

Likelihood of Confusion

For registered marks, a plaintiff must show that

defendant used the mark:

• Without consent; In commerce;

That the mark used was a reproduction, copy

or colorable limitation of plaintiffs’ registered

mark; and that such a use is likely to cause confusion

Courts apply a multifactor test which considers:

• Similarity of marks

• Similarity of products

• Area and manner of concurrent use

• Degree of care likely to be exercised by consumers

• Strength of Plaintiff’s mark

• Whether actual confusion exists; and

• Intent of defendant in selecting its mark

vs.

Trade Secrets—Uniform Trade

Secrets Act A trade secret is information that:

• Derives independent economic value from not being

generally known to, and not being readily

ascertainable by proper means by other persons who

can obtain economic value from its disclosure or use;

and

• Is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy.

Contractual Rights

Non-Disclosure and

Confidentiality

Agreements

Invention Assignment

Agreements

Terms and Conditions

So How do These Legal Terms

Apply to Social Media?

Facebook Terms (last revised April 26, 2011)

2. Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control how it is

shared through your privacy and application settings. In addition:

For content that is covered by intellectual property rights, like photos and videos (IP content), you

specifically give us the following permission, subject to your privacy and application settings: you

grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any

IP content that you post on or in connection with Facebook (IP License). This IP License ends

when you delete your IP content or your account unless your content has been shared with

others, and they have not deleted it.

When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a

computer. However, you understand that removed content may persist in backup copies for a

reasonable period of time (but will not be available to others).

When you use an application, your content and information is shared with the application. We

require applications to respect your privacy, and your agreement with that application will control

how the application can use, store, and transfer that content and information. (To learn more

about Platform, read our Privacy Policy and Platform Page.)

When you publish content or information using the Public setting, it means that you are allowing

everyone, including people off of Facebook, to access and use that information, and to associate

it with you (i.e., your name and profile picture).

We always appreciate your feedback or other suggestions about Facebook, but you understand

that we may use them without any obligation to compensate you for them (just as you have no

obligation to offer them).

Facebook Terms (continued) (last revised April 26, 2011)

5. Protecting Other People's Rights

We respect other people's rights, and expect you to do the same.

You will not post content or take any action on Facebook that infringes or violates someone else's

rights or otherwise violates the law.

We can remove any content or information you post on Facebook if we believe that it violates this

Statement.

We will provide you with tools to help you protect your intellectual property rights. To learn more,

visit our How to Report Claims of Intellectual Property Infringement page.

If we remove your content for infringing someone else's copyright, and you believe we removed it

by mistake, we will provide you with an opportunity to appeal.

If you repeatedly infringe other people's intellectual property rights, we will disable your account

when appropriate.

You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos,

FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.

If you collect information from users, you will: obtain their consent, make it clear you (and not

Facebook) are the one collecting their information, and post a privacy policy explaining what

information you collect and how you will use it.

You will not post anyone's identification documents or sensitive financial information on

Facebook.

You will not tag users or send email invitations to non-users without their consent.

Facebook Terms (continued) (last revised April 26, 2011)

8. Special Provisions Applicable to Share Links

If you include our Share Link button on your website, the

following additional terms apply to you:

We give you permission to use Facebook's Share Link button

so that users can post links or content from your website on

Facebook.

You give us permission to use and allow others to use such

links and content on Facebook.

You will not place a Share Link button on any page containing

content that would violate this Statement if posted on

Facebook.

Twitter Terms of Service (Effective June 1, 2011)

Tip: What you say on Twitter may be viewed all

around the world instantly. You are what you Tweet!

Twitter Terms of Service (continued) (Effective June 1, 2011)

Your Rights

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Tip: Twitter has an evolving set of rules for how ecosystem partners can interact with your content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content)

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.

Twitter gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software that is provided to you by Twitter as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Twitter, in the manner permitted by these Terms.

Blogger Terms

6. Intellectual Property Rights. Google's Intellectual Property Rights. You acknowledge that Google owns all right, title and interest in and to the Service, including all intellectual property rights (the "Google Rights"). Google Rights are protected by U.S. and international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. As described immediately below, Google Rights do not include third-party content used as part of the Service, including the content of communications appearing on the Service.

Your Intellectual Property Rights. Google claims no ownership or control over any Content submitted, posted or displayed by you on or through Google services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through Google services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through Google services which are intended to be available to the members of the public, you grant Google a worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services. Google furthermore reserves the right to refuse to accept, post, display or transmit any Content in its sole discretion.

You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content submitted.

You may choose to submit, post, and display any materials on or through the Blogger service or Blogspot.com under a public license (e.g. a Creative Commons license), whether by manually marking your materials as such or using Blogger service tools to do so. For avoidance of doubt, Google is not a party to any such public license between you and any third party. Also, for avoidance of doubt, Google may choose to exercise the rights granted under (a) the public license or licenses, if any, you apply to your materials or (b) this Agreement.

WordPress Terms

By submitting Content to Automatic for inclusion on your

Website, you grant Automatic a world-wide, royalty-

free, and non-exclusive license to reproduce, modify,

adapt and publish the Content solely for the purpose

of displaying, distributing and promoting your blog. If

you delete Content, Automattic will use reasonable

efforts to remove it from the Website, but you

acknowledge that caching or references to the Content

may not be made immediately unavailable.

Tumblr Terms

3. Subscriber Content

Subscriber shall own all Subscriber Content that Subscriber contributes to the Site, but hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so (“Content License”) in order to provide the Services. On termination of Subscriber’s membership to the Site and use of the Services, Tumblr shall make all reasonable efforts to promptly remove from the Site and cease use of the Subscriber Content; however, Subscriber recognizes and agrees that caching of or references to the Subscriber Content may not be immediately removed. Subscriber warrants, represents and agrees Subscriber has the right to grant Tumblr and the Site the rights set forth above. Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, (b) reveals any trade secret, unless Subscriber owns the trade secret or has the owner’s permission to post it, (c) infringes any intellectual property right of another or the privacy or publicity rights of another, (d) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (e) contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or (f) remains posted after Subscriber has been notified that such Subscriber Content violates any of sections (a) to (e) of this sentence. Tumblr reserves the right to remove any Subscriber Content from the Site, suspend or terminate Subscriber’s right to use the Services at any time, or pursue any other remedy or relief available to Tumblr and/or the Site under equity or law, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Subscriber Content or if Tumblr is concerned that Subscriber may have breached the immediately preceding sentence), or for no reason at all.

1. Sharing Your Content

Your content. Pinterest allows you to pin and post content on the Service, including photos, comments, and other materials. Anything that you pin, post, display, or otherwise make available on our Service, including all Intellectual Property Rights (defined below) in such content, is referred to as “User Content.” You retain all of your rights in all of the User Content you post to our Service.

How Pinterest and other users can use your content. Subject to any applicable account settings you select, you grant us a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, display, reproduce, re-pin, modify (e.g., re-format), re-arrange, and distribute your User Content on Pinterest for the purposes of operating and providing the Service(s) to you and to our other Users. Nothing in these Terms shall restrict Pinterest’s rights under separate licenses to User Content. Please remember that the Pinterest Service is a public platform, and that other Users may search for, see, use, and/or re-pin any User Content that you make publicly available through the Service.

Your responsibility for your content:

To Pinterest and our community. Pinterest provides a creative and positive place for you to discover and share things you love. To keep it that way, we ask that you review and agree to abide by our Pin Etiquette. We must also insist that you only use our Service in a manner that is consistent with the Pinterest Acceptable Use Policy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. Please — be a good citizen on Pinterest, and always respect our Service and its Users.

To third parties. Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same. You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights (defined below), publicity rights or rights of privacy. We reserve the right, but are not obligated, to remove User Content from the Service for any reason, including User Content that we believe violates these Terms or the Pinterest Acceptable Use Policy. It is important that you understand that you are in the best position to know if the materials you post are legally allowed. We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards. To learn more about copyright and fair use, please click here for some links to useful third party resources.

8. Indemnity

You agree to indemnify and hold harmless Pinterest

and its officers, directors, employees and agents,

from and against any claims, suits, proceedings,

disputes, demands, liabilities, damages, losses,

costs and expenses, including, without limitation,

reasonable legal and accounting fees (including

costs of defense of claims, suits or proceedings

brought by third parties), arising out of or in any way

related to (i) your access to or use of the Services or

Pinterest Content, (ii) your User Content, or (iii) your

breach of any of these Terms.

Restrictive Covenants (e.g. Non-Compete and

Non-Solicitation Agreements) and Trade Secret

Issues

Issue 1: violation of restrictive covenants/disclosure of

trade secrets through the use of social media

Issue 2: destruction of trade secret status/hurdles to

enforcing restrictive covenants as a result of social media

activities

Result: employees are being asked to give up rights in

restrictive covenants and employment agreements

An Employee’s

Duty of Loyalty

In general, an employee

must not act contrary to an

employer’s interest

However, an employee may

agree with others to compete upon termination of their

employment and may plan and prepare for their

competing enterprise while still employed

But: An employee may not, while still employed, go

beyond mere planning and preparation and act in direct

competition with the employer

Business

Opportunities

of the Employer

When considering whether

an employee seizes the

business opportunity the

following factors may be considered:

• The manner in which the opportunity was communicated

• The “good faith” of the employee

• The use of corporate assets to acquire the opportunity

• The financial ability and interest of the company to

undertake the opportunity

• The degree of disclosure made to the corporation

Example:

You work in advertising/PR and write a social media

related book • Do you have a contract with

your employer?

• Are you using work

resources?

• Are you writing for the

benefit of your employer?

• Are you writing with the

consent/encouragement of

your employer?

• Do you utilize Social Media

because of your job?

• Have you gained your

expertise in the area because

of your job?

Example: You work in advertising/PR for a major brewing

company and write a beer review blog in your spare

time

• Do you have a contract with

your employer?

• Are you using work resources?

• Are you writing for the benefit

of your employer?

• Do your followers know you

work for the Brewery?

• Are your posts promotional

of/tied to your work at the

Brewery?

• Have you gained your expertise

in the area because of your

job?

Example:

You work in advertising/PR for a major brewing

company and write a blog about cats…

• Unless it’s this cat…

Social Media Policies Can Provide

Much Needed Guidance Things to Consider…

Does your industry or profession have specialized rules or regulations concerning communication?

Will employees be allowed to use social networks during working hours?

Does the Company intend to claim ownership of any content?

How can employees use the corporate brand on social networks?

Will employees be allowed/expected to comment on company related topics?

What are the penalties for employees who violate your policy?

Reserve the right to modify the policy

In Addition to a Policy, Provide

Training Employees need to know

not only what is expected

of them and what rights

you may claim, but WHY

You should make clear

what expectations and

opportunities your

company may be interested

in

Regular training updates (at

a minimum yearly) provides

opportunity to reinforce

your position and keep

employees up to date with

new developments

When in Doubt, Don’t be Afraid to

Ask

No one can be expected to know everything about

social media

New networks / sites develop everyday

Consumer use adapts at a breakneck pace

Terms and conditions change frequently

Case law is developing as we speak

Contact Information

Jeff Schultz Partner, Armstrong Teasdale LLP

314.259.4732

jschultz@armstrongteasdale.com

www.armstrongteasdale.com

http://twitter.com/JeffSchultzEsq

http://twitter.com/AT_Law

http://twitter.com/AT_Live

http://twitter.com/AT_Innovate