It is a task often relegated to the office interns: posting promotional content to outside social media sites.

Despite the fact that this practice is officially frowned upon in the Federal Trade Commission’s 2009 endorsement guidelines, companies will often engage paid individuals – either employees on the payroll or outside bloggers who receive compensation in the form of a free sample – to post positive reviews online, including to places like Twitter, personal blogs, or online public forums without identifying the connection between the commenter and the product being commented on.

The FTC’s endorsement guidelines seek (among other things) to ensure that unbiased positive reviews online can be considered credible, while also ensuring that positive reviews that are partially the result of some sort of compensation be acknowledged as such. Continue reading

Unlike traditional newsroom journalists, “citizen journalists” have no formal way to ensure that everyone maintains similar quality standards.  Which does not mean that quality standards are necessarily (or consistently) maintained at traditional newsrooms, but rather that a traditional hierarchical editorial structure imposes at least theoretical guidelines.

By definition, citizen journalism’s inherent difference from the traditional editorial process is the dispersion of responsibility for editorial choice.  Nonetheless, “trustiness” in journalism is a concept still heavily dependent on a reporter’s or editor’s reputation.  Is the New York Times trusted because it’s trustworthy?  Or is it trustworthy because it’s trusted?

The “Generated By Users” journalism blog recently reported the results of its reader poll, “Do you TRUST user generated content in news?” Continue reading

Kate Tummarello is a Research and Social Media Intern with Mirsky & Company and a reporter at Roll Call/Congressional Quarterly.  Follow Kate on Twitter @ktummarello.  Andrew Mirsky of Mirsky & Company contributed to this post.

Gone are the days of bashing your boss in the breakroom. Now, colleagues gather online to anonymously air their grievances.  A group of disgruntled Demand Media, Inc. employees did just that with their website DemandStudiosSucks.com.  Then Demand Media struck back.

Late last month, attorneys for Demand Media, a content production company whose properties include eHow, LIVESTRONG.com, Cracked.com, typeF.com, Trails.com and GolfLink, sent a letter to DemandStudiosSucks.com asking it to remove content that had been copyrighted by Demand Media.

The media company accused the people behind this censorious website of creating and maintaining “a forum in which users can, and do, post and misuse Demand Media’s trademark, copyrighted material, including confidential and proprietary copy editing tests.”  The letter also referenced “an internal presentation regarding the company’s business plans”, published without permission on DemandStudiosSucks.com.

Immediately, of course, the letter was posted on DemandStudiosSucks.com.

The next day, a user named “Partick O’Doare,” who has posted the majority of the content on the site, published an open letter addressing the claims made by Demand Media’s attorneys.  Although the website removed the content addressed in the letter, O’Doare explained that the site’s creators had not acknowledged any infringement in removing the content.

Instead, those behind the website claimed that their use of the Demand Media content fell under fair use guidelines, specifically protections for commentary and criticism.  “Let’s be honest,” the open letter says, “if ever there was a case of unequivocal fair use, this would be it.”  A statement which should raise flags to anyone who previously felt similarly.

Fair use is a defense to a claim of copyright infringement, but not other claims.  A fair use argument cannot simply succeed on its merits where other legal rights are violated.  Context matters.  So, for example, as seen in some Facebook “suck site” cases, fair use will not protect against a claim of defamation.  Employees who publish company trade secrets and other proprietary information cannot rely on fair use to defend against claims of violations of corporate and employment law.

O’Daire’s letter proudly boasts that the voices behind DemandStudiosSucks.com were fully prepared to defend themselves, citing the fair use cases Lenz v. Universal Music Corp. and Online Policy Group v. Diebold, Inc.

A blogger publishing under the name “WTForever21.com” recently got threatened with litigation for trademark infringement by the LA-based clothing retailer Forever 21.

WTForever21.com, a parody site published by Rachel Kane, had prominently disclaimed any affiliation or endorsement by Forever 21.  And as indicated, Kane’s purpose was (some would claim clearly) parody.   Kane was the proud recipient of a cease and desist letter from Forever 21 on April 22 (a copy of which can be found here), which alleged trademark and copyright infringement, unfair competition and trademark dilution.

Without testing the merits of her legal position and, according to several initial reports, not willing to expend the resources to do so, Kane announced that she would pull down her site by June 10th.  Kane then reversed course, and issued a statement last month stating “If the company continues to makes threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.”  The site is currently live. Continue reading

The Las Vegas copyright fair use loss for Righthaven last week was probably less meaningful – and less amusing – than the “money quote” (as Wall Street Journal blogger Ashby Jones put it) from the federal Judge James Mahan, who reportedly mused, “I realize this is going to be appealed.  I tell litigators ‘that’s why God created San Francisco’” – site of the 9th Circuit federal appeals court.

At first glance, the case is a breathtaking blow for newspapers and media organizations (including, presumably, bloggers), because it upheld a fair use defense against copyright infringement where the newspaper story was copied in its entirety.

This case would seem to run afoul of every fair use guideline ever published, including the fair use law itself, and particularly the frequent characterization of a “fair” use as a “transformative” use:

… whether the new work “merely supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994).

But that’s first glance.  Judge Mahan hasn’t yet issued his Order, so we know only wha the Las Vegas Sun reported from the hearing.   Continue reading

(Thomas Yarnell contributed research and writing to this post.)

In a past post, we wrote about copyright as it relates to how preemption of state law civil causes of action in the same or related cases.  In writing about the Perez Hilton and NFL Films cases, we noted that federal copyright law did not preempt applicable state laws (specifically, “hot news” and right of publicity claims) because the rights claimed under the state laws were not equivalent to the rights protected by the Copyright Act.

Put another way, federal copyright preempts state law claims where the rights sought to be enforced under the state claims do not necessarily match those protected by the Copyright Act.  In those cases, the rights protected by copyright – reproduction, performance, distribution or display of the work – were distinguishable from the rights protected by the state law claims.

A 2008 North Carolina case offers a counter example, involving failure to show that a state law added some unique element outside of the rights protected by copyright. The case, Rutledge v. High Point Regional Health System, F.Supp.2d –, 2008 WL 2264239 (M.D.N.C.) shows how claims under state law can only avoid copyright preemption if they are “qualitatively different” from copyright law. Continue reading

I was recently asked about “fair use” standards for use of copyrighted video or audio in mashups.

What’s a Mashup?

First: What are mashups?  From WiseGeek:

A mash-up is a combination of tools or data from multiple sources. Mash-ups typically collect data from multiple web pages and bring their information into one simplified web application.

Mashups are common in the application development world, but also common in music and videos, and examples are legion (and some notorious).  In particular, a music mashup is (according to Squidoo) …

when the vocals from one song are laid over the music of a second song to create a mashed up version that’s both but neither.  If a good job is done, it enhances the original music.

Actually, the last part of that definition is most critical to a fair use analysis.  I recently wrote about fair use in the context of the republishing of copyrighted photographs or artworks in a magazine, book or electronic publications.   Continue reading

Question: Under what circumstances can “fair use” support the editorial republishing of copyrighted photographs or other artworks in a magazine, book or electronic publication?

Short answer: When the previously copyrighted works are the subject of the republishing.

Fuller answer: An “editorial” republishing, almost by definition but with important caveats, satisfies the “fair use” test under the Copyright Act in 17 U.S.C. § 107, in particular by meeting the Act’s four-factor (nonexclusive) criteria: Continue reading

A little-appreciated requirement for trademark owners is a duty to monitor and police their trademarks.  This duty applies to owners of unregistered trademarks as much as federal registered marks, since registration is not necessary to claim many trademark rights.

What types of activities must be monitored and policed?  Infringement and dilution.  Or in other words, any third party uses of the same trademark or confusingly similar versions that might cause confusion in the marketplace about the source of the goods or services represented by the trademark.

Trademark Duty to Monitor and Police

2 basic reasons to monitor and police: First, the government won’t do it for you.  The Trademark Office is actually quite explicit about stating this, see here.  Second and more to the point, unchallenged third party uses of a trademark could legally – and actually – weaken the strength of the trademark as an identifier of the owner’s goods or services, which in turn weakens the owner’s ability to later enforce the trademark and devalues the worth of the mark. Continue reading

FTC enforcement of its new blogger guidelines has involved typically high-profile actions against Anne Taylor LOFT (FTC ultimately taking no action) and Reverb Communications (for allegedly deceptive postings of positive reviews on iTunes for games produced by Reverb clients).

While premature to draw any broad conclusions on the enforcement environment for the new rules, a philosophical problem with the FTC’s new blogger framework is its willful ignorance of the advertising underpinnings of traditional media.

So, for example, while established newspapers like the New York Times and Washington Post depend for their credibility on perceived soundness of the journalistic “church-state” divide, readers are almost never proactively alerted to major advertising support from common story subjects in business and politics.  Disclosure more typically comes from investment or ownership relationships, in the form of “full disclosure” statements like that from Ezra Klein when reporting about Facebook (“Disclosure: Washington Post Co. Chairman Donald E. Graham is on Facebook’s board, and The Post markets itself on Facebook.”).  Not, though, from advertising relationships, even major advertisers.

At least not with newspapers.  PBS’ Newshour, NPR and other public news broadcasts commonly disclose underwriting relationships involving story subjects.  However, the same cannot be said of commercial television news broadcasts unless they involve investment or ownership relationships.

Since the underwriting structure of public broadcasting is substantively no different than the advertising relationships of newspapers, commercial television and most media websites, editorial disclosure of the financial support – of any kind – of such media outlets seems equally appropriate.

Citizen Media Law Project, in its coverage of Anne Taylor action, notes that the FTC guidelines limit disclosure to cases where the sponsorship relationship is not “reasonably expected by the audience”.

Put in the context of audience reasonable expectation, this seems rather generously written for the benefit of old-line media, which has relied for generations on the presumption of credibility by its readership much more so than disclosure.

Why then, shouldn’t bloggers be afforded the same benefit of the doubt that newspaper publishers have been given for generations?  Yes, there will always be egregious cases of paid-for “earned media” such as the Reverb case with iTunes.  But it used to be that time and dedicated readership was the ultimate arbiter of media influence.

This all begs the question of why the expectation of the relationship – rather than actual influence – is the measuring stick.