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Monthly Archives: March 2016

#Liability: Avoiding the Lanham Act and the Right of Publicity on Social Media

Hannah L. Cook


#Liability: Avoiding the Lanham Act and the Right of Publicity on Social Media


Suppose a company wants to engage young people through social media, building its brand among thousands of potential customers in an effective and relatively inexpensive manner. A photographer has snapped a picture of a popular celebrity leaving the company’s store, shopping bags with its logo in hand. Can the company share the photo on social media?

This paper provides insight into how social media posts of celebrities can generate Lanham Act and right of publicity liability. It focuses on how tools unique to social media can influence the viability of these claims. Usernames and hashtags can increase the threat of liability. On the other hand, sharing and the resulting statistics can be used to bolster a First Amendment defense. Social media represents a valuable and growing way for companies to engage consumers, but these connectivity tools must be used wisely.


Hawaii May Join Other States in Restricting Employer Acces to Employee Social Media Accounts


Hawaii May Join Other States in Restricting Employer Access to Employee Social Media Accounts

The Hawaii House recently passed HB 1739.  This bill, among other things, tells employers that they “shall not require, request, or coerce an employee or potential employee to disclose the username, password, or any other information for the purpose of accessing the employee or potential employee’s personal account.” The bill is now on its way to the Hawaii Senate.

To read more about the bill go here.

Discovery Request Seeking 7 Years of Facebook Records Deemed Too Broad

Discovery Request Seeking 7 Years of Facebook Records Deemed Too Broad

In Maochun Ye v. Cliff Viessman Inc., et al., No. 14 C 1531, U.S. Magistrate Judge Jeffrey T. Gilbert ruled that the defendants’ discovery request for plaintiff’s Facebook archives for the past seven years was too broad.  The judge conceded  “that defendants are seeking content relating to damage issues that are at times hard to ascertain, such as the grief, sorrow and mental suffering of the decedent’s next of kin following her death.”  However, the judge ultimately determined that defendants have failed to tailor their request “to relevant content only.”

To read more about this case go here.

Doe v. Backpage (Section 230 of the CDA)



Doe v. Backpage.com, LLC, 15-1724

In this case plaintiffs were victims of sex trafficking that occurred via advertisements on Backpage.com.  The appellate court affirmed the trial court’s dismissal of this action finding that operating a website through a meretricious business model is not enough to strip away the Communications Decency Act’s (CDA) protections for internet publishers.  This case, among other things, illustrates the tension between the Communications Decency Act of 1996 (CDA), 47 U.S.C. section 230, and the Trafficking Victims Protection Re-authorization Act of 2008 (TVPRA),18 U.S.C. sections 1591 and 1595.

h/tip Findlaw

Chipotle’s Social Media Policy Deemed Unlawful


Chipotle’s Social Media Policy Deemed Unlawful

An Administrative Law Judge in Philadelphia has found Chipotle’s social media policy to be unlawful.  To read an article about the case go here.

Employer Liability for Employee Facebook Posts (Howard v. Hertz)


Employer Liability for Employee Facebook Posts (Howard v. Hertz)

Howard v. Hertz addresses one of the growing concerns of employers across the country.  Can they be held liable for the social media posts of their employees?  In the case of Howard, the answer was no.  However, in the future, it is very likely that some companies will be held liable for the social media activities of their employees.

In Howard, several employees of Hertz had a discussion about a customer on Facebook.  This discussion included racially charged statements and comments about the customer’s declined credit card.  Here is a sample of the Facebook discussion that occurred among the Hertz employees.

[Employee A posted the following on his Facebook page]: I seen Maurice’s bougie ass walking kahului beach road . . . n*** please!

[Employee A then describes the plaintiff as follows]: a broke ass faka who act like he get planny money ..

[Co-worker:] run that faka over!!! lol.

[Employee A] i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.

[Co-worker comment:] What no BMW for h today?

[Employee A] now he knows we got mercedes, he’s gunna drive those. It’s too bad his CC declines all the time.

[Co-worker:] Hahahaha . . . he still renting huh LOL.

[Another co-worker:] No more Troy his favorite boy though! Sorry Troy!

Upon learning about the posts, the customer, Maurice Howard, sued Hertz alleging negligent supervision, negligent retention, and negligent training by the employer.  Howard also brought claims against the individual employees who posted the comments.  Hertz moved to dismiss the case arguing that the customer failed to allege any basis to hold it responsible for the employees’ online statements. While Howard’s claim survived the motion to dismiss, it did not survive summary judgment.

At the summary judgment stage, the court, in examining the traditional negligence factors: (1) duty, (2) breach of duty, (3) causation, and (4) damages found that “Howard’s failure to establish the duty element is fatal to each claim.”  More specifically, the court found that “Howard has not demonstrated the existence of a genuine issue of material that…[the plaintiffs] foresaw or should have foreseen the danger posed by…[Employee A] and should have been more closely supervising his Facebook use earlier or should have fired him earlier.” According to the opinion, the supervisor of Employee A did not use Facebook nor was she aware of any prior derogatory or crude posts made by Employee A.

As for the negligent training claim, the court found that “[e]ven if Hertz was under a duty to train…[Employee A] and others to prevent the harm allegedly suffered by Howard, Howard provides no evidence that such a duty was breached. According to…[the manager], she instructed…[Employee A] in 2009 or 2010 not to post anything related to Hertz on Facebook, and…[Employee A] told…[the manager] he understood and would not post anything in the future.”


Social Media Attorney Position: Machinima


Social Media Attorney Position: Machinima

Machinima is the most notorious purveyor and cultivator of fandom and gamer culture. The FIRST! Many2Many programming service (M2M), we create, curate and celebrate the best fandom and gamer content across multiple video platforms. As one of the largest online video platforms in the world, Machinima programs to a community passionate about video games, animation, movies, TV, and the other endless forms of pop culture. With a focus on scripted, topical and gaming programming, and a talent network of thousands of programmers, Machinima reaches over 170M viewers each month.

Machinima’s programming reflects an enormous passion for gaming, heroes and comics among the world’s most socially engaged fans. We work with the most dynamic creative talent to produce original and re-imagined narratives across all genres, including scripted, reality, docu-series, game-play, walk-throughs, animation, news and entertainment.

Position Summary

Machinima is seeking an experienced lawyer to act as lead attorney advising the company on matters related to advertising and brand agreements, sponsorship’s, social media activities, influencer engagements, contests and promotions and related matters. In addition, this lawyer will advise the company on matters related to influencer and user-generated content campaigns and influencer and other advertising disclosures. Candidates should have knowledge of and experience advising on marketing, advertising, influencer and social media issues and obligations, including disclosure obligations, as required by the FTC and international equivalents, especially as related to digital programming, platforms and content.

Key Relationships

Report To:                           This role will report to the General Counsel of Machinima

Other Key Relationships: Sales, Integrated Marketing, Talent Management, Content and Programming teams.

Primary Responsibilities

Work with sales and content teams to provide legal advice on proposed custom content and influencer campaigns;

Successfully negotiate and close media and custom content campaign agreements with major agencies and brands;

With the assistance of the talent management team, successfully negotiate and close agreements supporting the campaigns, including agreements with influencers.

Work closely with sales and talent teams to ensure the campaigns comply with all relevant laws, rules and regulations, including FTC guidelines;

Oversee internal and external training regarding compliance; and

Work closely with internal social media team, production team and other stakeholders to ensure compliance.


Juggling multiple projects simultaneously;

Working under tight deadlines;

Creativity in identifying ways to improve processes and work-flows and leadership in implementing them

Maturity in dealing with internal and external clients; and

Ability to work independently.

Candidates should have 5+ years’ experience advising clients on the issues described above. Relevant in-house experience is a plus.   Candidates must be a member of good standing of the California Bar or eligible to be Registered In-House Counsel with the California Bar.

We Offer:

•   A dynamic environment focused on operational excellence, attracting developing and retaining A+ talent and having fun!

•   Wicked affordable PPO medical, dental, vision, life insurance, and 401k plans. Our HMO option is FREE!

•   Unlimited paid time off, and we even close for 2 weeks over the year-end holidays!

•   Socially conscious and community oriented company.

•   Numerous engaging, fun team building events planned by our FUN POLICE!

•     Competitive base salaries, bonuses