LinkedIn is a popular professional networking website with more than half a billion members. Many of its users, in an effort to enhance their networking capabilities, make their profile public and available to anyone to review their personal details such as their employment, education, skill sets and other personal information. Although LinkedIn disclaims any ownership of the information its users post, this information has enormous value in the online marketplace.
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Are Pins, Posts, Tweets and Likes Appropriate for Use in Selecting Jurors?
When you hear the name of someone you can’t place or don’t know much about, what do you do? Chances are, you “Google” them. Well that is what attorneys are doing to learn more about prospective jurors too! But they are not stopping there. They are looking at a number of social media sites, such…
Is Fox News Proposing a New Standard For Determining Fair Use?
North Jersey Media Group Inc. is the copyright owner of the iconic photograph of three firefighters raising an American flag at the ruins of the World Trade Center on September 11, 2001. On September 11, 2013, a Fox News producer posted a photograph that juxtaposed the 9/11 photograph with a World War II photograph of four U.S. Marines raising an American flag on Iwo Jima on the Facebook page for the Fox News’ television program Justice with Judge Jeanine. North Jersey Media Group sued Fox, claiming that the posting of the combined image infringed its copyright. Fox news argued that the use was protected “fair use” and moved for summary judgment. The court denied Fox’s motion and Fox is now appealing to the 2nd Circuit.
Fox’s appeal centers around the lower court’s analysis of the first fair use factor: the purpose and character of the use. The purpose of this factor is to test whether the allegedly infringing work is “transformative.” A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc, “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”
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Your Facebook Copyright Notice is More Annoying than Farmville
If you use Facebook, you probably already have noticed that many users are posting statements claiming that Facebook somehow acquires ownership of users’ intellectual property that has been posted to that site. Reacting to this entirely erroneous proposition, many Facebook users have posted very scary and onerous status updates aggressively asserting their intellectual property rights in the materials they have uploaded onto Facebook. One user posted that they “hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. . . . for commercial use of the above my written consent is needed at all times!” (Undoubtedly her use of an exclamation point will add significant legal weight when this status update is considered by a court in the forthcoming case of Everyone v. Facebook.) That same user warns us that violation of her privacy is punished by law, UCC 1 1-308-308 1-103 and the Rome Statute. Undoubtedly, Facebook is horrified by the prospect of violating either of these statutes. Or not.
This Facebook user (and legions of other Facebook users who (ironically) have copied her ominous copyright warning) apparently have missed the plainly worded terms governing the use of Facebook’s online services. While it’s not clear how the Uniform Commercial Code or the Rome Statute possibly could govern the relationship between a Facebook user and the website, the Facebook terms of use agreement clearly states that “you own all of the content and information you post on Facebook . . . .” The agreement further provides that users merely give Facebook a limited, non-exclusive license to any intellectual property content posted on the website, a license which expires when the content is deleted by the user. Perhaps these simple contract terms were missed during the analysis of international criminal statutes (which have not been ratified in the United States), or laws related to the sale of goods.
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Who Owns Facebook “Likes” on Your Page
This dispute over ownership of Facebook ‘likes’ pits the creator of a fan Facebook page for a TV show against the television network that owns the show. The facts of the dispute are as follows: From 2008, the CW Network broadcasted the television series “The Game”, a dramatic comedy about the lives of professional football players and their wives and girlfriends. BET acquired the syndication rights to the series in 2010 and then in 2011 began producing original episodes.
In 2008, when the series was on the CW Network, Stacey Mattocks created a Facebook fan page for the series. Mattocks did not post any CW or BET owned content and she did not hold the Facebook page out to the public as the “official” series page. Around October 2010, BET hired Mattocks to perform part-time work managing the series’ Facebook page. BET then regularly instructed Mattocks to post, or not to post, certain information on the page and provided her with exclusive photos and video clips. Mattocks posted most of the content on the FB Page, but BET employees also occasionally posted material. Apparently Mattocks did a good job managing the series’ Facebook page as the number of ‘likes’ grew from around two million to over six million.
In February 2011, BET and Mattocks entered into a written agreement regarding each parties’ rights and privileges regarding the Facebook page. Mattocks granted BET full administrative access to the page, and BET agreed not to exclude Mattocks from the page by changing her administrative rights. However, it appears that this agreement was silent on which party owned the Facebook page.
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