Intellectual Property Concerns for Sponsors of Promotional Contests and Sweepstakes

David Klein

newklein

Joshua Wueller

wueller

Intellectual Property Concerns for Sponsors of Promotional Contests and Sweepstakes

Abstract: 

Marketers are always looking for more effective ways to entice consumers, with the goal to build a brand and sell more products and services. Long ago, armed with the knowledge that people enjoy winning prizes, savvy promoters began offering promotional contests and sweepstakes, which encourage consumers to participate in a marketing initiative in exchange for the chance to win certain giveaways. Winners of sweepstakes are chosen by luck of the draw, while contest prizes are typically awarded to entrants who best perform a given task. When administered effectively, these promotions can create buzz around a particular product or service, drive traffic to a storefront, produce user-generated advertising content and build marketing lists.

As time progressed, sponsors began redeploying the age-old concepts of promotional contests and sweepstakes on the Internet through the use of high-tech websites and social media platforms. However, as promotions have become more interactive and publicly accessible, sponsors become more susceptible to certain legal risks surrounding intellectual property (or “IP”) – including images, names, symbols, designs, written text, inventions and other materials. This article explores many of these IP-related legal concerns and considers some steps that sweepstakes and contest sponsors may take in an effort to minimize risk.

Attention Facebook! Time to Update Your Terms of Service Agreement and Give Fiduciaries a Break

Matthew Slaughter

Attention Facebook! Time to Update Your Terms of Service Agreement and Give Fiduciaries a Break 

Abstract: 

The Stored Communications Act, as it stands now, with no further legislation, creates an issue for modern technology that will only be exacerbated by the innovation of new technology services and platforms. The simple request of a decedent’s Facebook information implicates several historical legal issues of privacy, ownership of content, and fiduciary rights, which all seem to further muddy the already murky water created by the SCA. It has been noted that Facebook is used for more than just a storage or communication service. It offers many different services that seem to expand and evolve each year, which will only continue to compound the issue with no change in the current laws.

While much of this tangled area of the law is a creature of failure to update and evolve the laws regulating an evolving market, some fault can be placed on service providers such as Facebook. The Terms of Service agreements entered into are at focus of this issue and are currently the easiest and fastest way to achieve clarity. Facebook and other service providers should update their terms of service to (1) give express “authorization” to fiduciaries to access these accounts, (2) explicitly state that lawful fiduciaries have been given “lawful consent” to access the account’s content, and (3) explicitly give notice to account holders whether their information will be transferable upon death. Simply put these changes would take fiduciaries out of harm’s way of criminal penalties, allow Facebook to voluntarily distribute materials to fiduciaries and give notice to account holders.

Facebook Allows You to Report Suicidal Users

Facebook Suicide

Facebook Allows You to Report Suicidal Users

Facebook plans to release new tools that will make it easier for users to inform Facebook about other users who are demonstrating suicidal thoughts.  Once Facebook receives the information about the user in distress, it will reach out to that user to see if he or she needs help.  At present, Facebook does offer some support to users who may be feeling suicidal but it is primarily in the form of a referral service.  This new feature goes much further and involves direct contact by Facebook, which does raise some privacy concerns.   To read more about Facebook’s initiative go here.

Judge Fined $11.5K for Facebook Post

facebook

Judge Fined $11.5K for Facebook Post

ABAJournal: Top state court refuses agreed discipline, says judge should lose $11.5K in pay for Facebook post

Law Review Article Calls for Treating Revenge Porn as Obscenity

Criminalization in Context: Involuntariness,Obscenity and the First Amendment

barmore

Cynthia Barmore

Abstract: “Revenge porn,” referring to the distribution of sexually explicit images without the consent of those featured, is a growing problem in the United States. New Jersey and California were the first states to criminalize the practice, but state legislatures around the country have been passing and considering similar laws in recent months. Proponents of legislation, however, are confronting critics who protest that the First Amendment precludes criminal liability for distributing lawfully acquired true material.

This Note provides the first in-depth analysis of how obscenity law can and should be used to criminalize revenge porn within the boundaries of the First Amendment. While no state legislature has characterized revenge porn as obscenity, this Note argues they should because the obscenity context provides the greatest insulation from a First Amendment challenge. If drafted to prohibit ob- scenity, such laws would enable states to robustly and constitutionally criminalize revenge porn, even when the photographer is the person objecting to distribution or the distributor acts without intent to cause serious emotional distress. The hope is this Note will guide legislatures to draft constitutionally responsible legis- lation to combat revenge porn.

Digital Kidnapping

Digital Kidnapping

Here is the latest method of online impersonation: Digital Kidnapping.   Apparently, some folks (primarily teenage women/girls) have started to “borrow” Facebook photos of other people’s children and passing them off as their own.  As best as I can tell, digital kidnapping does not appear to be illegal even under the recently drafted online impersonation statutes.

USA Today: Is someone digitally kidnapping your child’s photos?

Seattle PD Creates New Social Media Policy

Seattle

Seattle PD Creates New Social Media Policy

Seattle Police Department Directive

Date: March 1, 2015

Directive Number 15-00007

5.125 – Social Media

Section 5.125 – Social Media has been added to the Manual.

This policy provides guidance regarding the Department’s official use of social media as well as a Department employee’s personal use of social media.

Please see the attached policy.

5.125 – Social Media

Effective Date: 03/01/2015

Social media refers to digital communication platforms that integrate user-generated content and user participation. This includes, but is not limited to, social networking sites, microblogging sites, photo and video sharing sites, wikis, blogs, and news sites. Some examples of social media include:

– Facebook

– Twitter

– Instagram

– YouTube

– Reddit

– Tumblr

These policies address the use of social media in general and not one particular form.

5.125-POL 1– Department Use of Social Media

The Department endorses the secure use of social media as described below to enhance community engagement, information distribution, and neighborhood safety.

1. The Chief of Police Approves Official Department Social Media Accounts

Exception: This approval requirement does not apply to the Director of the Office of Professional Accountability (OPA) or the OPA staff acting under the authority of the OPA Director. However, this exception does not relieve the Director of the obligation to obtain approval from the Mayor’s communications director per City policy.

2. Public Affairs will Oversee all Official Department Social Media Accounts

3. The Department Will Clearly Identify its Official Social Media Accounts

Where possible, Department social media accounts shall prominently display the following information and/or statements:

– Department contact information and a link to the Department website

– That pages are maintained by the Department

– The purpose and scope of the Department’s presence on the websites

– That the opinions expressed by visitors to the pages do not reflect the opinions of the Department

– That posted comments will be monitored and that the Department reserves the right to remove comments at its discretion such as obscenities, off-topic comments, personal attacks, any comments that jeopardize an ongoing investigation or prosecution, or that otherwise impair the Department’s ability to provide effective law enforcement services to the community.

– That any content posted or submitted for posting is subject to public disclosure

4. Investigative Units May Use Non-Official Social Media Accounts

Investigative units may use non-official social media accounts for investigative purposes with written permission of the Chief of Police.

These investigative units will maintain a log of all social media postings to non-official accounts.

5. Social Media Content is Subject to Information Technology and Records Management Laws and Policies

The City of Seattle Department of Information Technology stores and retains content from official Department social media accounts in compliance with open records laws and policies.

5.125-POL 2 – Employee Personal Use of Social Media

This policy covers employee personal use of social media affecting the workplace and/or the Department’s ability to perform its public mission.

The Department recognizes the role that social media plays in the personal lives of some Department employees. However, the personal use of social media can have bearing on employees in their official capacity as they are held to a high standard by the community.

Engaging in prohibited speech outlined in this policy may provide grounds for discipline and may be used to undermine or impeach an officer’s testimony in legal proceedings.

1. Employees Shall Not Post Speech That Negatively Impacts the Department’s Ability to Serve the Public

Employees may express themselves as private citizens on social media sites as long as employees do not:

– Make, share, or comment in support of any posting that includes harassment, threats of violence, or similar inappropriate conduct

– Make, share, or comment in support of any posting that ridicules, maligns, disparages, expresses bias, negative connotations, or disrespect toward any race, religion, sex, gender, sexual orientation, nationality, or any other protected class of individuals

– Make, share, or comment in support of any posting that suggests that Department personnel are engaged in behavior reasonably considered to be unlawful or reckless toward public safety

– Otherwise violate any law or SPD policy

Employees are responsible for the content of their social media accounts. Employees shall make reasonable efforts to monitor their accounts so that postings made by others on their accounts conform to this policy.

2. Employees May Not Post Privileged Information or Represent the Department

Employees shall not post or otherwise disseminate any confidential information they have access to as a result of their employment with the Department.

Employees may not make any statements, appearances, endorsements, or publish materials that could reasonably be considered to represent the views or positions of the Department.

Exception: This section does not apply to the personnel outlined in Manual section 1.110- Media Relations.

3. Employees May Not Use Their City Email Address to Register a Personal Account on Social Media

Employees shall refer to Manual Section 12.110 regarding personal use of City-owned equipment and devices to access the internet and email.

To read more about the policy go here.

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