Managing Marketing: Social Media Marketing and the Law

Managing Marketing is a podcast hosted by TrinityP3 Founder and Global CEO, Darren Woolley. Each podcast is a conversation with a thought-leader, professional or practitioner of marketing and communications on the issues, insights and opportunities in the marketing management category. Ideal for marketers, advertisers, media and commercial communications professionals.

Sara Delpopolo is the Principal at Axis Legal and the founder and President of the International Social Media Association and talks with Darren on the legal issues concerning social media, particularly about the role of copyright, intellectual property and trademarks but also many of the other legal issues often overlooked in the social online world.

Sara Delpopolo

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Transcription:

Darren:

So, welcome to Managing Marketing and today I’m talking with Sara Delpopolo who’s Principal of Access Legal but she’s also the founder and President of the International Social Media Association.

Welcome, Sara.

Sara:

Thank you.

Darren:

Look, the reason I’m so interested is clearly marketing and digital online and social media are such big areas of marketing and such a big focus, and you’ve obviously got a very deep understanding of that with the International Social Media Association.

But a lot of people seem to overlook the legal aspects of social media, particularly around intellectual property, copyright, and patents. I was just wondering if you could give me a sort of layman’s guide to what that actually means, what is copyright, and what is the general thing of intellectual property?

An overview of potential legal issues

Sara:

You’ve hit the nail on the head. Look, most people still do think that social media doesn’t involve legal probably because of the word ‘social’. But ultimately whatever happens on the various platforms, and I know we’ve got the Facebooks, and the Twitters, and everything else but we’re very quickly, I think, moving into other territories, new platforms.

I think of virtual reality, augmented reality, how’re they going be incorporated into these platforms in the future? But there are really big legal questions that do come out of these platforms and we’ve identified, in our firm, about 14 different areas of the law.

Darren:

Wow.

Sara:

Yeah. So, obviously we’ll focus on the IP stuff for your listeners but when you’re looking at the fact that so many CEOs, CIOs, CMOs, you know all the C-Suites are encouraged these days to be on social media.

When you think that many companies are outsourcing their social media content creation and listening to companies who are effectively making unilateral decisions and you have the corporations, I don’t want to bore you with too much legal jumble but everyone in these very senior autonomous decision-making roles could actually be exposed to corporate breaches, if they say the wrong thing.

Darren:

What, like insider trading, if they talk about potential takeovers and things?

Sara:

Well, they could be unwittingly disclosing confidential information.

Darren:

Right.

Sara:

There could be creativity around the confidential information or it could just be plain old things like you said, a takeover coming up.

But it could even like the Netflix situation so many years ago now where the CEO was announcing quite happily and proudly, and rightly so, on his open Facebook page, which he used predominantly for business, that he was so excited and thrilled to announce that Netflix had reached their one millionth subscriber.

Darren:

Right, and that was confidential?

Sara:

No. Overnight the share price went up. Now, who would have thought that, ‘isn’t that a great thing?’ Of course, you want your share price to come up except that if you’re a shareholder you’re meant to know when the latest announcements are actually going to be released.

So social media is today, especially Twitter, the number one channel for potential investors to find out about what the company’s going to do next.

Darren:

What’s going on.

Sara:

Right? I mean for marketing people that’s probably at the most boring end of the spectrum but it’s just to give you an idea. And then we were talking just before you switched on the mic about things like defamation.

You can be anyone and be getting defamed in the company, whether you’re in marketing or whether you’re the receptionist. So, things that happen on social media can cause major, major problems. Obviously, we’ll chat more deeply around the IP issues. But you’ve got consumer breaches, misleading deceptive conduct…

Darren:

It’s also like inciting racial hate, all of those rights and issues, protecting people’s rights.

Sara:

Absolutely. You know we might have to do this on another day but I’ve actually had an instance just last week where I was the victim of some pretty insane remarks.

Darren:

Really?

Sara:

Yeah. Posted on my Twitter handle and it was literally just a response, an outrageous response to a reposting of something that was in the media and it was just because they were…

Darren:

Angry and frustrated.

Sara:

Oh they were angry and frustrated and they were upset that…it was around Zane Alchin and Olivia Melville, the girl who was completely abused because of a Twitter photo and this guy who’s absolutely gone to town on her, threatening her, making all sorts of sexual and violent threats, and finally after twelve months he has decided to change his plea to guilty, because it is a crime.

Darren:

Oh absolutely. Making threats against someone is a crime under the crimes act.

Sara:

It is totally and no one knows it so all I’ve done is repost the article and said, ‘this is a really great result for raising awareness’. I’m not even going to repeat what I was actually called, and I was told that in the old days I’d be burnt at the stake after suitable torture.

You know there were comments…it just went on. This was like only about ten of them and I went like, ‘whoa’ and reported them to Twitter.

Darren:

Sara, isn’t it interesting though because basically what these social media platforms including Facebook and Twitter and even Snapchat have given us, as individuals, is the power that used to only reside with the major publishers because we now have an audience.

Sara:

We’re all Rupert Murdoch now.

Darren:

But what hasn’t come across is the responsibilities that come with that because to have that sort of influence you might just think you’re sharing with your friends but there’s actually a responsibility to act in an appropriate way.

Sara:

But people just forget about it. We all know because we’ve all heard, ‘Oh, it’s got this kind of anonymous quality, you can put in your 180 tweets that’s got some random twitter handle and a photo that’s not even you so you feel that you’re protected by this anonymity and it’s like gossiping behind someone’s back to their friends.

Not having the guts to say things to their face.

Darren:

But it’s not though; it’s public.

Sara:

Correct. But people don’t realise this. That’s kind of the one extreme so when we’re talking about social media not being a legal issue, that is completely the furthest thing from the truth.

I guess it’s because it’s fast, it’s easily accessible. We did a report and found that about 800,000 kindergarten kids are on Facebook.

Kids on social media and the implications

Darren:

You’re joking?

Sara:

Yeah, it was astounding. To be honest I can’t remember where I found the stat but one of my legal researchers at the office found it and we were just like, ‘what?’

Here’s the thing, that’s kindergartens. Now, we know that a major percentage of the social media users are between the ages of thirteen and seventeen. The laws, not just in Australia, but pretty much all around the world say that you can’t be legally bound to a contract until you’re eighteen.

Darren:

And in most jurisdictions there’s also no criminal intent up to often sixteen to eighteen.

Sara:

No, that’s right.

Darren:

So, even if you break the law…

Sara:

Correct. So people may be thinking  ‘So what, I’m a marketer, what’s that got to do with me? I’m not doing the stuff that thirteen year olds do’. But what if you’re doing the marketing campaign for McDonald’s?

Well we’ve got plenty of thirteen year olds who do love McDonald’s even though the advertising standards bureau says you can’t advertise around fast food but there are quite a few fifteen year olds that are employed by these retailers and so they’re working there.

So, in fact, social media really does involve a whole lot of laws.

Darren:

Also because of the sheer size of it it’s very hard to actually control it. You can’t segment particular parts of the market; it’s out there for everyone.

Sara:

Facebook’s another country; it’s just got one billion people.

Darren:

It makes me now think about some of those sponsored tweets and sponsored posts on Facebook that are making contractual obligations because it says, ‘buy now’. Does that mean if a thirteen-year-old clicks on that and goes buy now can they actually be bound to that contract?

Sara:

Well I tell you what, who’s paying their phone bill?

Darren:

Their parents.

Sara:

We saw this happen with the mobile industry, 2006, 2007. I know because I was probably acting for the clients for causing it.

Darren:

Who had two or three-thousand-dollar phone bills…

Sara:

Oh no, no, no. I was actually acting for the mobile content company so we were at the coal face of everything. But in those instances you had the parents basically saying, ‘no, we don’t know anything about this’. And next thing you know the TIO was like, ‘yeah, refund them’.

Now, when you’re looking at social media and you’re looking at in-app purchases or via ads through social media sites it’s probably pretty easy for little Johnny to go steal mum’s credit card and put that in. Next thing mum’s like, ‘what the hell are all these purchases?’ That’s completely unenforceable.

IP

Darren:

So, going back to intellectual property…

Sara:

That is the exciting stuff.

Darren:

Australia, particularly, has got a long history of pirated downloads of movies and TV shows and all sorts of things and there’s a general attitude amongst the public clearly that they shouldn’t have to pay for the IP because pirating has been a big issue.

It seems to be even worse in social media because people are often “borrowing” or stealing (technically) intellectual property that they find shared in social media.

Sara:

Yeah, because it’s easy right? It’s so easy to do it. The social media platforms do genuinely try their best to have some sort of rules, except it’s impossible for them to know which country’s rules they should be guided by but when we’re looking at that whole concept of borrowing off social media it just comes down to the fact that it’s easy and that most people really do not understand intellectual property anyway.

Which is really bizarre because I remember when I started doing trademark work, you know five minutes ago… I meant 15 minutes ago more like it. I remember back then you’d be lucky to be having 70,000 applications filed, 100,000 applications filed in Australia every year.

I think that that number is something outrageous now so more and more people are really aware of this whole concept of a trademark and, ‘oh, I’d better go and protect it now’ but then they don’t understand what that really means and they think it’s just about getting a pretty certificate and putting it in a drawer, right?

Darren:

Or in a frame on the wall.

Sara:

But ultimately what happens is that that’s basically an asset and that’s got to be put to use and it’s got to start generating some funds somewhere. So when you have people stealing images for example. We’re talking about mainly it’s going to be stealing photographs and stealing videos …

Darren:

Or illustrations.

Sara:

Illustrations, right. That’s the most common thing. Then people think, ‘oh I’m never going to be found out’ and ‘maybe if I just crop it here and crop it there maybe no one will actually realise it because isn’t it the 10% rule?’ ‘I’m sure that if I just take only 10% I’ll be fine’.

I’ll just ‘source’ it from social media…

Darren:

Or the other one I’ve heard is ‘public usage’, which is…

Sara:

I don’t even know what that’s all about but…

Darren:

So the example is I had an agency who had put to their client an idea that used 1,000’s and 1,000’s of images in a 30 second TV ad and there would be like 20 flash frames a second. So, over 30 seconds by 20, 600 images, and when we asked where those images were coming from, because there was no price put to pay for them, they said, ‘they would just ‘source’ them off the internet, social media like Instagram or Facebook’.

And we said, ‘well, that’s an issue because while you may be able to use that image you don’t have permission from the person that appears in the image to actually appear in a paid commercial ad as though they’re seen to be endorsing …’

Sara:

Yeah. And what if they’re under 16.

Darren:

Yeah. So, it wasn’t just IP. It’s also performance rights or association or…

Sara:

This is the thing that’s happening. What I’m seeing with a lot of my clients, and even my friends. I’ve got friends that are both the digital marketers frustrated because they’re having to deal with corporate clients that are not moving fast enough, right?

And then I’ve got friends that are in-house counsel in companies that are like, ‘we’ve got so much that is happening and we get thrown these live random social media questions that, in the scheme of things, are not important because they’re dealing with massive corporate fire-fighting agreements and everything.

So, we hear all of these problems coming up and the common threads are always around the speed at which everything happens. So, I mentioned the fact that it’s really easy to lift stuff off the various social media platforms and the second thing is it really moves too fast.

So, you might have someone who’s got a great concept for a post and they’re like, ‘brilliant, I’ve got to act on this fast’. You know in social media you can’t wait two weeks for something to come through?

We won’t get caught, right?

Darren:

Yep.

Sara:

So, it’s very much the case of take now, say sorry later, right?

Darren:

If we don’t get caught.

Sara:

If we don’t get caught. Look, the reality is at the moment a lot of people may not be getting caught but I think that people are becoming more and more savvy and there are definitely some cases around where we’re seeing some pretty significant fines happening.

We had an instance in Europe, which was a photographer, Phillip Morrell and he sued the AFP, Agence France Presse, for lifting one of his photos after they’d asked for permission for getting images.

Darren:

Oh right.

Sara:

They ended up paying him a million dollars in copyright infringement. We saw another instance, probably about 18 months ago, of the very well-known, deep-pocketed, controversial copyright-thieving artist–that’s pretty much what everyone’s calling him—Richard Prince in the U.S, who lifted astoundingly fantastic photographs of people, images that people had put up, of portraiture, and he lifted the entire tweet including the comment underneath, and all he did was add another comment.

And he was selling them. He had an entire exhibition in a very popular New York gallery and he was selling them for like $ 90,000 USD—no attribution, no nothing.

These things are happening. We shouldn’t be making the mistake to think “that is in the U.S and it’s not going to be applicable here”, because when we’re looking at international property rights the laws are very much similar. The Australian courts are indeed looking at what’s happening in the U.S, in the U.K. and they’re using those cases as guidance because the laws are the same.

Pretty much everything is commercial use

Darren:

So, there’s something you can clarify for me because if I take someone’s IP and I use it, because this is the defence or an excuse that I’ve heard, ‘I’ve used it but it’s not for commercial purposes. I’m just sharing it with my friends on Facebook’.

Is that different to a company or an individual who’s using it to generate revenue, or making a profit from someone else’s work? And is it different again if I use it not for profit but I use it in a way that is detrimental to the reputation of the person?

Sara:

Yeah, they’re all really different issues. My first question would be; how many Facebook or Twitter followers do you have, Darren?

Darren:

Oh, Twitter, 19.5 thousand

Sara:

Right, so it’s not going to really matter at that stage if you say it’s just for my personal use because the likelihood is, when you have that many followers, they’re not going to all be your best friends.

That’s what’s really interesting today when we’re looking at what exactly is commercial use? Like there could be Suzy Homemaker who decides to set up a Twitter page or a YouTube channel or whatever it is. It starts off with her friends and she’s just sharing some information but ultimately the real goal is that she becomes the next you know…?

Darren:

Becomes famous, becomes a celebrity.

Sara:

How many bloggers? Ultimately, almost everyone is seeking to become an influencer even amongst their own peers and friends. So, what is non-commercial? I would say very few instances these days are non-commercial.

Most people’s Facebook profiles, there’s a blend. What’s not commercial? Well how many business associates, clients, and non-friends and family do you have on those social media sites? That’ll give you an idea of whether you’re really doing stuff for a non-commercial purpose.

So as far as what happens if you actually deal with work in a way that’s derogatory? That’s a concept under the copyright act called ‘moral rights’. We don’t have that in the U.S. but we have it here so if I’m an artist and someone’s actually lifted my photograph and then they’ve done something that is derogatory…

Darren:

Or makes me look like an amateur…or offensive to me.

Sara:

Makes me look like an amateur, or offensive to me personally then I would have an action under the copyright act for an infringement of moral rights. Moral rights are never going to be assigned.

I have to, in writing, actually decide to relinquish my moral rights, which means I’ll never be able to go after anyone but no one asks for that when it’s social media.

Here’s the other thing. Under the copyright act you don’t have a copyright assignment unless it’s specified exactly what’s been assigned and is in writing.

Assigning copyright

Darren:

I’m so glad you brought that up because so many contracts we see between major advertisers and their agencies actually just say, ‘all work produced under this contract is assigned to us on the payment of the fee’. My reading of the copyright act says that you actually have to specify each piece of work that’s actually covered by that.

Sara:

If you’re an employee you don’t.

Darren:

No but I’m talking about the agency.

Sara:

If you’re a contractor then it’s got to have to deal with what you’ve been contracted for. So what’s the job that you’ve been contracted for? If it’s related to that job, then anything that you create during that contract is going to be assigned.

But if suddenly they’re trying to claim an assignment of copyright for something that has nothing to do with that job and is something outside of it, they’re going to have a hard time.

How do they actually enforce that if you’re looking at trying to claim a copyright assignment for someone who’s potentially under age? So think about everyone out there who has created some cool trade promotions for your clients.

Design a tee-shirt, upload it to Facebook, and you enter into the competition. And I bet your bottom dollar that you’ve all been sneaky trying to bury in those complicated terms and conditions that there’s an assignment of copyright of everything that anyone’s ever done.

Unless you’ve got their parental guidance you don’t own that copyright because they can’t assign it.

Darren:

They have no legal right to assign that themselves.

Sara:

Yeah. There are a lot of brands out there that are creating some pretty amazing content. This is the thing; there are a lot of 13 to 17 year olds that are unbelievably talented and creative so they’re an incredible pool of…

Darren:

They’re actively participating and engaged in social media so they’re going to be producing IP almost without even realising it themselves.

 

Sara:

That’s right. So, when we’re looking at copyright there are all these issues that do come into play. So we’ve spoken about derogatory treatment. We’ve spoken about the commerciality. It’s very, very hard these days, I think, to prove that it’s not for commercial purpose, and thirdly, we’re looking at ownership and what exactly is being infringed.

So, if someone actually decides to lift any sort of content – please don’t make a mistake in thinking that if you change it that you can take 10% of something. That rule does not exist; it never has. And we’ve got really famous cases to reference it by, which I would imagine that everyone has heard about. It’s the Larrikin Music versus Men at Work, right?

Darren:

Yeah, yeah. The kookaburra sits on the old gum tree.

Can you copy an idea, a song, a campaign by changing it a bit?

Sara:

Right, if anyone listening to this does not believe me, go and play the riff. You will find that what Men at Work took was three seconds. Three seconds and that was considered the most prominent feature, so the 10% rule is a farce. It’s what’s the most prominent feature of the work is, so you can’t crop something.

Darren:

So, Sara, because so many agencies will take a great piece of commercial music and then when they try and licence it they’ll find out it’s too expensive for the client. The artist or the publisher, and I won’t even get into publishing rights and performance rights, but they can’t afford it so they’ll go to a composer and they’ll go, ‘we want something to sound like this.

Sara:

Ah, sound alikes, look alikes.

Darren:

The danger is if it sounds like it then you’ve probably breached. And I try to explain because I even had a musician tell me he’d changed a certain number of notes and I said, ‘you do realise that the way this is judged is if it’s before a judge and not a jury they play the two tracks and it’s whether it makes them think that it’s similar or the same’.

There’s no mechanical formula is there?

Sara:

No, there’s not. It can get very technical. There’s been a really interesting case recently in the U.S. for Led Zeppelin Stairway to Heaven. Frankly, I cannot see how that decision.

Darren:

Didn’t it go against?

Sara:

It went for Led Zeppelin, which I was completely surprised about. I have the feeling that the judge was just in love with Led Zeppelin.

Darren:

He was probably a head-banger from way back.

Look alikes and sound alikes

Sara:

But in Australia here’s the rules, as you said, this is the most prominent, what is the impression that’s left? Just because you get someone else to go and compose it and maybe change one or two chords it doesn’t mean that’s not actually infringing the piece of music.

Again we’re going to look at normal cases that apply here. There was a really interesting case of Olivia Newton-John. She sued Maybelline. They had approached her to do an ad. Maybe they didn’t even approach her. There was an ad that was done by Maybelline, which does the mascara, the eye makeup and there was a girl who was a look alike for Olivia Newton-John and the tag-line was, ‘Olivia? No, Maybelline’.

So, Olivia sued and won. And there’s another couple of really good ones in the U.S. with Barbra Streisand and Tom Waits. Two individual cases where they had been approached by two different brands for them to be appearing in the ads or singing in the ads and they both independently had said, ‘no’.

So completely different cases but the same sort of scenario and they did the whole look alike, sound alike situation. So, it’s exactly the same as someone deciding it’s too expensive to get the actual track and compose their own version.

Darren:

So if you can’t afford the real thing then don’t do a sound alike.

Sara:

Change your actual campaign. Sometimes we’ve even seen this stuff extends to politicians. Do you remember the whole meme tweets?

Darren:

Yes.

Sara:

Ok, so my dad, last year, and he’s pretty good on social media but he decided to read out, do a little YouTube video reading out the meme tweets that had been said about him. So, he’s very personable on social media and next thing you know he gets a letter of demand from Warner music because he has used as the background music REM’s ‘Everybody Hurts’.

Darren:

Without permission.

Sara:

Correct.

Darren:

Oh no.

Sara:

Now, he did a very clever comeback and pulled it down and…

Darren:

Put it up again without music?

Sara:

No, pulled the music down and did a very clever tweet in response but when we’re talking about who can get it wrong. You could be a marketer working on a campaign for anyone like it doesn’t necessarily have to be a brand.

Darren:

Sara, this happens all the time.

Sara:

All the time.

Darren:

The number of times in my career, and since then doing this job that I’ve heard and seen marketers say, ‘we just want a video and just get a piece of music to put under there, and I really like such and such…’

Sara:

We’ll only use 10 seconds of it and we’ll loop it.

Darren:

Not even that. It’s only for a trade presenter, it’s only going to be shown at this conference, and in fact, I had a client that phoned me up and said, ‘we’ve been asked to pay the fee because we used music and the publisher’s representatives were at the conference.

Sara:

Correct, and here’s a lovely thing, and I know everyone hates lawyers but sincerely you really need to learn to love us. We’ve got this wonderful thing called professional indemnity insurance so no one else has that, right?

When people in these companies are making these decisions to just use that. Now if you end up in a situation where you are being sued and there is discovery, which basically means you have to provide emails and everything else and God help you if there is an email where someone has said, ‘yeah but don’t worry about it, just use it’.

What we have there is that individual being personally liable for the infringement.

Darren:

Not the company, the individual.

Sara:

Well, the company could be as well but they would be complicit. I used to, before my social media days, before I set up Access Legal 12 years ago I was working at a law firm. In fact, I was working at a law firm in North Sydney and I used to do all the vetting of ads for Euro—I don’t know what they are now.

“Legal will just say no”

Darren:

Havas.

Sara:

Havas, right. So I used to do all of the vetting for their ads and they were the old infomercials, right? As well we did infomercials for another company; I can’t remember who they were but I remember we would get the urgent email with the video attached.

Darren:

Can you approve this now?

Sara:

We’ve got to get this out…

Darren:

Tonight.

Sara:

Tonight, so I would basically sit there and do my review and write down, make sure I’m working with the questions. Now, people don’t realise that those same rules apply in social media.

The problem is, if we have to be honest, how many times would you then be calling up a lawyer and how many times would you have to be stopped waiting for them, three hours or whatever, for them to get their act together to give you advice when in social media we know that most of the time things just happen so quickly.

Darren:

Like that. Also, sorry to cut you off, but my experience is that every time we’ve suggested that they get legal advice they say, ‘oh no, they’ll just say no’ and I’ll go ‘because it’s the right thing’. And they go, ‘well we won’t get caught anyway’.

Sara:

You’re half right. And this is the thing. Most of the time they do get a ‘no’ from legal. There’s two issues; either they’re going to a lawyer who just doesn’t necessarily know how to move in this area, right? Because you need to move really quickly.

Darren:

Often in-house.

Sara:

And in-house? Here’s what you need to understand. In-house are personally liable for any statements. If they make a decision, they are considered one of those autonomous decision makers. And often you’ll have in-house double as the company secretary so they are in massive, massive risk territory.

Darren:

Risk minimisation it’s called.

Sara:

So not only do they have the corporation’s risks and not only can they be personally found guilty of misleading and deceptive conduct under the Australian consumer laws, and hey guys this is like $275,000 for the individual liability, or $175,000, it’s one of those two.

But we’ve also got an incredibly strict legal regime that covers legal professionals. So you might end up in a situation where a lawyer who’s in-house has literally got no time and maybe they know something about this area but they would literally have to sit down and go ‘right, I need to spend a couple of hours familiarising myself with the other issues that could be involved here and I don’t have time so I’m just going to say ‘no’.

Darren:

It’s easier to say, ‘no’ because it minimises the risk.

Sara:

Well it minimises their risk but the sad thing is I would say in about 60% of the cases it could’ve happened. It just got given a ‘no’ and it could’ve happened with the slightest tweaking.

“If people share it on social they should expect it to be used”

Darren:

Which is why you need someone that is a specialist in a particular area and not just go to a generalist who is responsible for a whole range of issues and who may not even be a specialist in things such as social media, intellectual property and the like.

Going back to that. I had someone say to me, ‘well if someone’s sharing their IP on social media they should expect people to use it and my point of view is, ‘because I have a lot of friends who are photographers, and video film makers. They all put their copyright statements into the image or on to the video as a statement of ownership so that there’s automatically attribution if it is shared.

Is that a good strategy?

Sara:

I think it is because you do need to assert your rights over your IP. People who say to you “if you’re putting it out there in the public then expect it to be taken”, I mean that’s like saying if you park your car on the street…

Darren:

Someone should steal it.

Sara:

Someone should be able to steal it. I mean there’s no difference. It’s locked for a reason.

Darren:

That’s a good analogy.

Sara:

But ultimately my thing with social media platforms, I always give an analogy of eyelids. Imagine it like the roads, right? Or imagine it like a shopping centre with a whole bunch of retailers in there.

There are general rules around what happens and how you’re meant to behave when you’re in a shopping centre or on a road. There’s a helluva lot of people using those roads so the platforms do have this danger of ‘well we’ve got this solution here’ but people really have no idea what the rules are it seems.

For me, no one knows what the rules are and I’m talking about from the legislators down because you do have organisations, you have government departments like the ACCC who are, I would say, just catching up to mobile.

They know that there’s stuff happening around social media. They’re aware of it and they are trying to warn people but the reality is that they are still struggling to get everyone up to speed with the education on the legislation and the laws that are maybe not even suitable for the fact that everything does happen on social media very quickly.

But this whole concept of if it’s out there in the public then I can use it – ultimately anyone who is saying that is trying to say that they’re entitled to steal someone’s trademark, copyright, so you’d also be, by the very same comment, entitled to say whatever the hell you wanted about someone else whether it was defamatory or not.

Darren:

Because you’re just ignoring the laws of the land.

Sara:

Well, they’re on social media so I should be able to call them whatever I want. So no, you cannot just take what is on social media.

Darren:

Just because it’s there.

Sara:

Honestly you’re opening yourselves up. I mean those cases, Phillip Morrell, that happened to him and it was a one million dollar fine. I’m not sure if that’s the ROI you want to be going back on.

We’re seeing so many instances where marketers are doing this, digital agencies are actually taking things, and then the brand is getting shamed because that was infringement.

Then we have this excuse from the brand, ‘but we recovered so well because we apologised really quickly’. I’m not really sure if that’s what the clients paid for. They paid for you to be using images properly, getting proper permissions, and here’s the hard thing it’s not easy because often, and I know because I do work with content providers and social media managers as well.

Often it’s just impossible to even contact the person who owns the particular photo or video or whatever it is. It’s often impossible to contact them or get an appropriate response. Sometimes you don’t know who took it.

And here’s the other thing that is difficult. What if there’s an image on my Twitter page or my Instagram, you’re contacting me for my permission to use that and I go, ‘Hell, yeah. Here have it’ but it’s not even mine in the first place.

So these are problems that marketers and people in the digital marketing industry are facing and maybe that’s where they’re going “well are we actually looking at a 50/50 risk here?” Maybe that person is never going to find out, maybe they don’t even own it and the other thing is, ‘I don’t have time to get permission, it has to go now’.

Creators need to be paid

Darren:

It also comes back to, as you said, the creators in the first place making sure that they use metadata or actually embed a claim of ownership of the IP that can be substantiated so that they can commercialise and protect what they’re creating.

Because I think the single biggest thing that we all have to realise is that if we stop paying our creators for creating then they will eventually get to the point that they can’t do it anymore.

Sara:

Exactly.

Darren:

We’ll all be worse off for it.

Sara:

I think so and I hear this quite often, people are like, ‘well, what’s the pluses and the fors for having free information and free creative work out there?’ The reality is that, and I don’t know who would be familiar with the concept of creative commons, but it’s the concept that copyright work can be put out into the public and accessed or licensed for free, subject to, I guess, almost like an honour system.

You know very simple basic rules about…

Darren:

Attribution?

Sara:

Yeah. Now the thing is that the people that create these sorts of free assets or free photographs or whatever, often you’ll find that they’re paid quite well to create that sort of stuff for free.

Now, last time I checked most of us had to feed ourselves, get ourselves from A to B, put a roof over our heads. Ultimately, if you’re not able to earn money from what you’re doing then you might find yourselves dying an early death because you basically have no way of supporting yourself.

So, being creative you should be entitled to get paid. The whole idea, I think that’s probably going to come into your next point, the whole idea of when you create something that is an asset, an intellectual property, which involves trademarks, so your branding, your videos, your music, an image, whether it’s an illustration (it can be a compilation of something that you have used), a piece of writing.

Ultimately if you create that and you want other people to use it (unless you’re loaded and you don’t care, and even then there are a lot of people who are loaded and who care very much) then you want to make sure that you can generate some decent licensing fees, you can generate some sort of payment.

We have photographers out there, you mentioned that you’ve got a lot of clients and I do as well. I’ve got the Australian Institute of Professional Photographers and they have these issues all the time, we’ve got to feed ourselves. This is our living, to take photos.

Darren:

When you’ve got photo libraries a dollar a time you’re just hoping there’s enough downloads at a dollar a time to keep food in the mouth and a roof on their head.

Sara:

There are some images that people won’t care if you take them but there might be one or two images or bits of creative content that will really mean a lot and here’s the other thing.

I have a lot of clients in the digital industry where they’re asked to tender for ideas and if you think that whatever is out there can be taken just go back to the instances where you’ve been asked to pitch for a piece of work.

I know how hard that is and how many hours are involved in putting that together and then next thing you know you don’t win that pitch, someone else does but low and behold some pretty significant elements of your pitch are now being used…

Darren:

By someone else.

Sara:

By someone else and you haven’t got paid for it, and it only came out of that request. I’ve had a lot of clients where they’re literally creating the campaign in the pitch.

That’s not any different to stealing people’s copyright or any artistic works on social media just because it’s there. If there are particular attributions, if there is a particular copyright notice or any sort of trademark notice and then you disregard it well then you’ve added the concept of flagrancy to the mix, which means that you can get an extra…

Darren:

Penalty.

Sara:

Slap, yeah. It can be a discretionary penalty on top of the infringement penalty. As creators you want to make sure that there’s a mutual respect for everyone because ultimately, it’s your own industry.

Darren:

Sara, thank you. We’ve run out of time. We could talk about this, and in fact, I would love to come back and perhaps we continue the conversation around some of the other areas of social media and the law because it’s such a fascinating area for me.

Sara:

Yeah, it’s really interesting.

Darren:

So, in the meantime if you’ve got any issues around social media, intellectual property, or the law I’d recommend that you contact Sara Delpopolo who’s a Principal at Access Legal, and also check out the International Social Media Association because it’s excellent, they’re in Surrey Hills, and it’s isma.ngo, so check them out online.

Thank you very much for joining me.

Sara:

You’re welcome.

Darren:

Oh, by the way I’ll talk to you about that defamation case.

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About Darren Woolley

Darren is considered a thought leader on all aspects of marketing management. A Problem Solver, Negotiator, Founder & Global CEO of TrinityP3 - Marketing Management Consultants, founding member of the Marketing FIRST Forum and Author. He is also a Past-Chair of the Australian Marketing Institute, Ex-Medical Scientist and Ex-Creative Director. And in his spare time he sleeps. Darren's Bio Here Email: darren@trinityp3.com

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