Posts Tagged: "Instagram"

Just two months after the end of her second copyright infringement lawsuit, fashion model Jelena Noura “Gigi” Hadid was sued for a third time, on September 13, for copyright infringement for posting paparazzi photos to her social media accounts without the license or permission of the photographer. Other celebrities, including Jennifer Lopez, Victoria Beckham and, most recently, Justin Bieber, have made news for the same situation. This trend falls into an interesting intersection of two significant tenets of law: a celebrity’s right of publicity in their own image and a photographer’s right to copyright their artistic work.

Trademark protection has never been more important than in today’s increasingly global economy. A company’s name, trademark or service mark, trade dress and website domain name are often its most important and valuable assets, and this applies as well to companies with lesser-known brands since social media has provided them with a platform to reach a worldwide audience. But even companies with well-known brands use social media as a tool to manage their brands’ image and engage with customers directly. In a borderless world economy, brands simply must utilize social media to remain competitive.

While many holiday shoppers may think that they’re getting a bargain by purchasing goods displaying a particular brand without having to pay brand prices, these shoppers are unwittingly gifting low-quality items or worse, products that pose health hazards, to their friends or loved ones. Thanks in large part to the Internet, counterfeiting operations have reached epidemic levels in recent years. Nearly half of all brand owners are losing revenues because of the sale of counterfeits and, in 2017, U.S. customs agencies seized a total of 34,143 shipments carrying counterfeited goods being imported into the U.S. But counterfeiting is a victimless crime, the common refrain goes. Nothing could be further from the truth. Terrorist organizations and organized crime families are turning to counterfeiting as a meaningful source of income given the exceptionally low penalties even if they are caught and extraordinarily high profit margins — profit margins that are even higher than selling drugs on the street. 

Counterfeit products are an enormous problem for businesses all over the world. Counterfeiters rip off name brand products, making cheap knock-offs, easily (and conservatively) costing many hundreds of billions of dollars each year… For example, according to RedPoints, an online piracy and brand abuse monitoring company, during 2015 Facebook accounted for only 2.2% of counterfeits sales of football jerseys for the clubs they were monitoring. That number grew to 46.3% by 2017. With the infringements on Facebook typically being smaller in scale, RedPoints comes to the conclusion that counterfeiters have not merely left one channel for another, but instead are using multiple sales channels and diversifying their efforts.

Canadian intellectual property owner BlackBerry Limited filed a suit alleging patent infringement claims against Menlo Park, CA-based social media giant Facebook Inc. in the Central District of California. BlackBerry alleges that Facebook, along with its subsidiaries WhatsApp and Instagram, violate patents held by BlackBerry in the field of mobile messaging communications.

On November 20th, both Peter Gene Hernandez, the American singer-songwriter-producer who goes by the professional name Bruno Mars, and New York City-based Warner Music Inc. were named as defendants in a copyright case filed in the Southern District of New York by Burbank, CA-based photographer Catherine McGann. The lawsuit targets Mars’ social media use of a photograph of himself taken by McGann when Mars was performing as an Elvis impersonator as a child.

Snap has attempted to remain competitive with new features, such as increasing the allotted time for video capture and introducing new drawing tools this May. But it hasn’t been able to gain a foothold against Facebook, a company which reportedly offered to buy Snap for $3 billion prior to Snap’s IPO… “If we are unable to protect our intellectual property, the value of our brand and other intangible assets may be diminished, and our business may be seriously harmed,” one of the section titles in Snap’s S-1 filing reads. Of course, in the current IP landscape, there is no real ability to protect that property, especially where it pertains to patents. And Facebook’s copying of features which are valuable on the Snapchat platform has been blatant.

Twitter®, Instagram®, Facebook®, Pinterest® and other social media websites and apps are great avenues for advertising and promotion of one’s business and brand. However, in using social media to promote one’s business, there are a number of pitfalls that one must avoid. Using social media in relation to a business is not the same as using social media for personal, non-commercial use… The issues with using someone else’s copyrights, right of publicity and trademark in social media to promote a business is that the business is arguably profiting off of someone else’s property that does not belong to them. That can and does create a significant amount of conflict. Profiting from another’s property is what separates the use of social media in business from just personal use.

There is no question that smart phones have transformed the social and economic structure of society, and the integration of increasingly effective cameras has helped spark the revolution.  It is now the norm for people to document their lives through images of themselves and those around them, and to share those images through social media, where others then copy, edit, and reuse them within the blink of an eye.  Just imagine all the ways that photos are now taken, posted and virally spread via social media.  For instance, I have taken selfies, asked strangers to take pictures of me with my hiking buddies, and asked friends to send me images of people from their camera rolls. I have taken photographs of well-known personalities at private gatherings, and snapped pictures of individuals when they had no idea I was even there.   Sometimes I decide to post these personal images on Instagram or Facebook, and then away they go… Unfortunately, the Ninth Circuit failed in T3Media to fully and accurately address the limits of copyright preemption on state law claims involving the personal rights of individuals appearing in photographs.

Instagram’s TTAB action targets U.S. Trademark Application No. 86663305, which would protect Microsoft’s use of the standard character mark “ACTIONGRAM” on goods including computer software for virtual reality realization, manipulation, immersion and integration of audio, video, text, binary, still images, graphics and multimedia files, as well as computer software for controlling wearable hardware and wearable computer peripherals. The application for this trademark was filed in June 2015. Microsoft is currently offering a beta version of Actiongram, a virtual reality service for Hololens users where users can create holograms which they can share with social contacts.