Strange rules and urban myths pop up all the time regarding the law, and are frequently difficult to prove or disprove. There are rarely bright-line rules, and you will probably find some variations between different states and jurisdictions. A ruling in California may be completely ignored in North Carolina. The following are urban myths from small businesses and startups we have run into when dealing with copyright, trademark, and internet issues.
1. Your business name or product name is still protected even without a trademark.
This can be partially true, with some pretty big caveats. A federally unregistered name or logo can be protected under unfair competition law and state trademark law, but your protection will likely only reach to the area where you currently sell your products.
How can this be a problem? You may have heard about this Illinois Burger King that is not associated with the national fast food empire. Recently two breweries on the opposite sides of the country came up with the same name for their new beer. One began using the name before the second one filed for a federal trademark. The result was the first brewery could use their name, but only locally. They were required to change the name for any shipments or sales outside their location. The federally trademarked beer can sell everywhere except near the first brewery.
2. Fair use allows wide latitude for using images, video, music on my company’s website and Facebook page.
Part of running a business is reaching and engaging customers consistently. This is pretty easy to do when someone else has created engaging content and you want to share it. A song about coffee would be fun for customers that love your coffee shop. A video of a great beer pour will remind people to head to your brewery for a cold one. A photo of a barbecue with the news you are selling brisket tacos will do great numbers on Facebook. Does fair use let you use almost anything you find online? You aren’t selling copies of the photo, or burning the song to CDs to sell. Fair use is a powerful legal tool, allowing the use of copyrighted material based on the purpose of the use, the character of the work, the amount copied, and whether there is a resulting negative impact on the marketability of the work. It generally allows someone to infringe a copyright for criticism, commentary, news reporting, teaching, and research.
If it sounds like kind of a confusing area, that is because it is. It’s a powerful tool that lacks a lot of guiding case law in the online space. Additionally, fair use is an affirmative defense, meaning you will be pretty far into a case before you find out if the use was allowable. If you do not want to pay hefty legal fees to find out, we recommend using spending the extra time to create your own photos and videos. If that feels like too much work, search for royalty-free photos and clips.
3. Memes, tweets, and other things you find on the internet are in the public domain.
You may have heard of patent trolls, which are people that purchase patents for the sole purpose of suing others for infringement. These exist in copyright, too! Someone purchases a library of clip art and stock photos, runs a Google image search for those images, and sends a demand letter to anyone who used the image on their website, blog, or Facebook. Even memes are not in the public domain. In a recent controversial copyright case, a judge ruled that embedding a Tweet with a photo violated the photo taker’s public display right. That particular case will proceed to determine, among other things, if fair use allows embedding the Tweet.
The law is slow to react to emerging technology, so there are still very few bright-line rules. As a general rule, avoid using anything you find online outside of royalty-free images. It is not worth receiving a demand letter for $10,000 for a Facebook post that only got three likes.
4. Linking back to the source will protect you from infringing copyrights.
For years, copyright attorneys recommended always using the embed function to include something from another site. There was never a rule supporting this point, but it seemed like a reasonable effort and keep your website from hosting the material and hopefully keep the creator happy. As mentioned above, a recent case has made a gray area even hazier. Citing your source does not offer you any protections against copyright infringement. It is, however, a nice thing to do.
Be very wary of embedding Tweets, Facebook posts, Instagram stories, and anything else created and uploaded by site users. Even long Facebook posts can be protected by copyright.
5. I can add my competition’s name to metatags, Google AdWords search terms, and Facebook Ads target groups to pull in their customers.
Running a startup or small business it tough work, especially when you are competing against bigger companies. It is enticing to get a jump on potential customers that are looking for your competition, and it is easy enough using Google AdWords and Facebook Ads. Even adding their information to your website’s metatags could bump you up on Google search results.
However, that means you are using their name in commerce, even if the consumer never sees that name on their web browser. This is trademark infringement, plain and simple. Some advertising campaigns get around this problem with broader search terms and are still able to jump above their competition with a promoted ad that never used their competitor’s name.
If you are just following urban myths and are unsure about the legality of your business practices, contact a qualified attorney for consultation. Contact our attorneys below for help with trade secrets, copyrights, trademarks, and other intellectual property-related policies. Spengler & Agans offers a flat-rate legal checkup for startups and business needing a broad, overall legal review of their business and business practices.