New Jersey Governor Chris Christie proclaimed that New Jersey employees have an expectation of privacy in the digital age when he signed A2878 into law earlier today. New Jersey has joined the growing number of states that are protecting the personal digital privacy of their employees and students. At least 13 states have enacted similar laws and 36 states along with Congress have introduced bills to protect
NCAA schools, students, employers, employees, etc... from companies that are selling social media monitoring legal liability
time bombs.
Some social media monitoring companies may claim they are a
"leader" in social media monitoring and/or in "educating"
student-athletes. Does the NSA claim they are monitoring personal digital accounts to educate? No. Therefore, any claim by Varsity Monitor, UDiligence, Fieldhouse Media, etc...that they are monitoring to "educate" is absolute *&%%&*$%.
Varsity Monitor, UDiligence, and Fieldhouse Media each sell
social media monitoring services that NCAA schools in at least 13 states may
not utilize to track the personal digital accounts of their
coaches and/or student-athletes. Schools
deploying the social media monitoring services of these companies may be
fined hundreds of thousands of dollars, and/or may be sued for violating
their student's first and/or fourth amendment rights, and/or may lose
millions of dollars in federal funding.
According to Deadspin, Varsity Monitor may have some troubling ethical and legal problems to address. The Courier Journal reported that Varsity Monitor's Centrix Social service was caught last year monitoring University of Kentucky student-athletes for using the terms
"Arab" or "Muslim" online. Why did Sam Carnahan, the owner of Varsity Monitor allow this to occur?
According to Time Magazine,
UDiligence was monetizing the personal photographs of the
student-athletes it was monitoring to advertise its services until it was confronted about this troubling practice. Unfortunately, UDiligence's founder Kevin Long only removed the offending photos from his UDiligence web site but not another one of his company web sites (I have screen shots if he claims otherwise). This demonstrates that schools, student-athletes, and sports related entities should think long and hard before trusting any entity that Mr. Long owns or controls.
The most troubling service may be Fieldhouse Media because it appears to
be trying to differentiate itself as having less invasive tactics than
the other companies. NCAA athletic departments should not be fooled.
It appears that in order for Fieldhouse Media's social media monitoring
service to properly work student-athletes need to at least authenticate their social
media username(s). Arkansas, California, Delaware, Illinois, Michigan, New
Jersey, and New Mexico have generally banned schools from being
able to ask a student to verify this information.
Fieldhouse Media's Kevin DeShazo's business practices appear to raise
serious ethical questions. For example, last year Mr. DeShazo created a
press release
announcing his social media monitoring service that quoted me without
my cooperation. Did Mr. DeShazo ask for my permission to be quoted in a
press release designed to sell his social media monitoring services?
No. Why is Mr. DeShazo trying to associate my reputation with a practice
that I along with lawyers and risk professional from around the country
believe may create tremendous legal and financial risks?
If you perform due diligence on Mr. DeShazo you may find some issues
that warrant further explanation. For example, according to his
publicly available LinkedIn Profile
from last year it states that before he started his social media
monitoring firm he had no verifiable social media or NCAA
compliance/advisory experience. Interestingly, according to his recent
publicly available LinkedIn Profile it now claims that prior to starting his social media monitoring
company he was working for a social media marketing firm. If Mr. DeShazo
was actually working for a social media marketing company before he
started his social media consulting firm why wasn't it listed
previously? Why has Mr. DeShazo recently claimed he launched Fieldhouse Media in 2010 (I have screen shots if this is denied) which conflicts with his LinkedIn Profile claims and the information on file with the Oklahoma Secretary of State?
In 2001, George O'Leary, Notre Dame's head football coach
resigned five days after being hired because of "inaccuracies" in his
published biography. In other words, Mr. O'Leary was caught
intentionally misleading NCAA athletic departments about his
background. After George O'Leary, Jayson Blair was caught creating a web of lies and was terminated from the New York Times, and then James Frey, the author of "A Million Little Pieces" was caught lying to Oprah.
Anyone that approaches schools to sell services to track personal social media accounts is
selling a legal liability time bomb. If a school hires a social media monitoring firm to track the
personal digital content of their students or employees and it misses an indication
that there may be a crime committed it may cost the school more than
$100 million dollars. For proof, just review the Penn State emails
regarding the Jerry Sandusky matter. Does a school want to be on the
hook for tens or hundreds of millions of dollars in legal liability
because it was utilizing a social media monitoring service to track personal digital accounts?
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Showing posts with label Social Media Sports. Show all posts
Showing posts with label Social Media Sports. Show all posts
Thursday, August 29, 2013
Wednesday, May 18, 2011
Professional Athletes and Celebrities are Harmed by Social Media Credential Fraud
Social Media Credential Fraud may destroy endorsement opportunities for professional athletes and celebrities in the digital space. Sponsors and advertisers are trying to determine the value of a Twitter follower, a Facebook Like, a Klout score and other social media metrics. Monetary and personal decisions are being made based upon social media profiles. Therefore, eliminating Social Media Credential Fraud is extremely important for the marketing industry.
If Social Media Credential Fraud is not stopped in its tracks it will destroy the social media marketing industry before it has even gotten off the ground. In 2009, the FTC updated its advertising regulations and within the last few months it has started to crack down on unethical digital marketing practices. The FTC has not even begun to flex its regulatory muscles and activities like Social Media Credential Fraud and other unethical and misleading marketing activities will not stop until the FTC makes cleaning up this space a priority.
Fortune 500 companies have been hesitant to embrace social media marketing until recently because there are few reliable metrics to measure success. Some professional athletes and celebrities such as Kim Kardashian are already making money due to their social media activity. This is due in part not only because of their popularity but also because advertisers are confident that these professional athletes and celebrities have real organic Twitter Following to Followers figures and other accurate and verifiable social media footprints.
The potential for an expansion of endorsement opportunities in the digital space will be destroyed if those who are perpetrating Social Media Credential Fraud are not punished by the FTC. Therefore, I challenge the marketing industry to take proactive measures against those who perpetrate fraudulent digital activity before it further inhibits the digital marketing space from blossoming. Until the marketing industry eliminates Social Media Credential Fraud and other unethical and misleading activities, sponsors and advertisers will not be able to accurately determine their return on investment for their digital advertising campaigns.
To learn how to how professional athletes and celebrities may avoid violating the FTC endorsement and testimonial guidelines and how to fully monetize one's social media assets you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
If Social Media Credential Fraud is not stopped in its tracks it will destroy the social media marketing industry before it has even gotten off the ground. In 2009, the FTC updated its advertising regulations and within the last few months it has started to crack down on unethical digital marketing practices. The FTC has not even begun to flex its regulatory muscles and activities like Social Media Credential Fraud and other unethical and misleading marketing activities will not stop until the FTC makes cleaning up this space a priority.
Fortune 500 companies have been hesitant to embrace social media marketing until recently because there are few reliable metrics to measure success. Some professional athletes and celebrities such as Kim Kardashian are already making money due to their social media activity. This is due in part not only because of their popularity but also because advertisers are confident that these professional athletes and celebrities have real organic Twitter Following to Followers figures and other accurate and verifiable social media footprints.
The potential for an expansion of endorsement opportunities in the digital space will be destroyed if those who are perpetrating Social Media Credential Fraud are not punished by the FTC. Therefore, I challenge the marketing industry to take proactive measures against those who perpetrate fraudulent digital activity before it further inhibits the digital marketing space from blossoming. Until the marketing industry eliminates Social Media Credential Fraud and other unethical and misleading activities, sponsors and advertisers will not be able to accurately determine their return on investment for their digital advertising campaigns.
To learn how to how professional athletes and celebrities may avoid violating the FTC endorsement and testimonial guidelines and how to fully monetize one's social media assets you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, March 11, 2011
Will Tweets Destroy the NFL and NFLPA CBA Negotiations?
The NFL's collective bargaining agreement is set to expire tonight at 11.59 p.m. There has already been two previous extensions and it is unknown whether another extension or a break-down in the negotiations will occur.
Both sides are entrenched in their positions and are doing everything they can to win the hearts and minds of the fans of the NFL. However, one thing that is troubling is that last night both sides fanned the flames via Twitter. George Cohen, the federal mediator who is working with the NFL and NFLPA to resolve their differences had previously asked the parties to keep quiet about the negotiations. For most of the past two weeks both sides appeared to follow Cohen's request until last night.
One of my favorite negotiating books is called, "The Power of Nice" and it is written by highly respected Sports Agent/Attorney Ronald M. Shapiro. On page 39 of the book, Shapiro discusses how the confidentiality of the Camp David Peace process worked to benefit both Egypt and Israel in reaching a long-term peach agreement that has lasted for more than 30 years. Shapiro contrasted the Camp David negotiations with the failed mediation for the 1994-1995 Major League Baseball labor dispute. Shapiro states, "knowing that what was said would go no further-enabled discussions to take place that could never have occurred in a public forum." The baseball mediation blew up when neither side could trust each other to keep confidences.
Therefore, I recommend that both sides impose a Twitter Gag Order before the situation totally breaks down. Going back and forth on Twitter like school children is not professional. Some of the Tweets I have read may make great entertainment but the goal of a Tweet should be to bridge the communication gap and not burn a bridge.
To learn how to negotiate in the social media age you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Both sides are entrenched in their positions and are doing everything they can to win the hearts and minds of the fans of the NFL. However, one thing that is troubling is that last night both sides fanned the flames via Twitter. George Cohen, the federal mediator who is working with the NFL and NFLPA to resolve their differences had previously asked the parties to keep quiet about the negotiations. For most of the past two weeks both sides appeared to follow Cohen's request until last night.
One of my favorite negotiating books is called, "The Power of Nice" and it is written by highly respected Sports Agent/Attorney Ronald M. Shapiro. On page 39 of the book, Shapiro discusses how the confidentiality of the Camp David Peace process worked to benefit both Egypt and Israel in reaching a long-term peach agreement that has lasted for more than 30 years. Shapiro contrasted the Camp David negotiations with the failed mediation for the 1994-1995 Major League Baseball labor dispute. Shapiro states, "knowing that what was said would go no further-enabled discussions to take place that could never have occurred in a public forum." The baseball mediation blew up when neither side could trust each other to keep confidences.
Therefore, I recommend that both sides impose a Twitter Gag Order before the situation totally breaks down. Going back and forth on Twitter like school children is not professional. Some of the Tweets I have read may make great entertainment but the goal of a Tweet should be to bridge the communication gap and not burn a bridge.
To learn how to negotiate in the social media age you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, January 18, 2011
NFL Teams and Executives Must Be Aware of the Legal Consequences of Their Social Media Usage
NFL teams and their executives must be very careful when utilizing social media. A few weeks ago, I reiterated why professional athletes and entertainers must exercise caution when utilizing social media. That post was in response to Baltimore Ravens Sergio Kindle's tweets about his medical condition and his subsequent DUI arrest. On January 5, 2011, John Elway started tweeting soon after he became Executive Vice President of Football Operations for the Denver Broncos based upon the recommendation of the Broncos Communications Department.
John Elway and the Denver Broncos received a tremendous amount of positive press by the national media for "conversing and engaging" with NFL fans. Sports writers and bloggers came out of the woodwork to exclaim how refreshing it was for an NFL franchise to utilize social media. It was one big love fest between members of the media and the sports blog community.
For several years, I have been predicting that professional sports will embrace social media. I am a fan of utilizing social media but as a lawyer I advise my clients of the numerous potential legal liabilities that social media may pose for users. Unfortunately, for John Elway and the Denver Broncos, Elway's social media usage may have already created some potential legal liability issues.
NFL teams and their executives should never Tweet how an interview went. On January 9th, Elway Tweeted, " Interviews with Perry Fewell and Eric Studesville went well today. We're looking forward to speaking with John Fox on Monday." Do executives from Coca-Cola or Pepsi discuss who they interviewed for high profile positions or how the interview went? No. So neither should the Denver Broncos or any other NFL team. What would happen if an NFL executive Tweeted about meeting with some, but, not every single coaching candidate and a candidate who would have complied with the Rooney Rule was not mentioned? Could this infer non-compliance with the Rooney Rule?
John Elway also Tweeted about Tim Tebow's status with the Broncos in a series of 3 tweets on January 8th which may have been in response to a report by Peter King that implied that Tebow may be traded. NFL teams must be very careful when tweeting about the status of their current, past, or potential future employees.
NFL teams and their executives may want to exercise caution when utilizing social media to ensure that they avoid any potential legal liability. Conversing and engaging with fans online may garner a lot of positive media attention but there are serious legal liability issues that users need to be aware of if they want to have a successful and non-litigious social media experience.
To learn more about the legal issues that your may affect your social media usage you may contact me at htp://www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
John Elway and the Denver Broncos received a tremendous amount of positive press by the national media for "conversing and engaging" with NFL fans. Sports writers and bloggers came out of the woodwork to exclaim how refreshing it was for an NFL franchise to utilize social media. It was one big love fest between members of the media and the sports blog community.
For several years, I have been predicting that professional sports will embrace social media. I am a fan of utilizing social media but as a lawyer I advise my clients of the numerous potential legal liabilities that social media may pose for users. Unfortunately, for John Elway and the Denver Broncos, Elway's social media usage may have already created some potential legal liability issues.
NFL teams and their executives should never Tweet how an interview went. On January 9th, Elway Tweeted, " Interviews with Perry Fewell and Eric Studesville went well today. We're looking forward to speaking with John Fox on Monday." Do executives from Coca-Cola or Pepsi discuss who they interviewed for high profile positions or how the interview went? No. So neither should the Denver Broncos or any other NFL team. What would happen if an NFL executive Tweeted about meeting with some, but, not every single coaching candidate and a candidate who would have complied with the Rooney Rule was not mentioned? Could this infer non-compliance with the Rooney Rule?
John Elway also Tweeted about Tim Tebow's status with the Broncos in a series of 3 tweets on January 8th which may have been in response to a report by Peter King that implied that Tebow may be traded. NFL teams must be very careful when tweeting about the status of their current, past, or potential future employees.
NFL teams and their executives may want to exercise caution when utilizing social media to ensure that they avoid any potential legal liability. Conversing and engaging with fans online may garner a lot of positive media attention but there are serious legal liability issues that users need to be aware of if they want to have a successful and non-litigious social media experience.
To learn more about the legal issues that your may affect your social media usage you may contact me at htp://www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, December 22, 2010
New York Jets' Rex Ryan Needs to Take His Feet Out of His Mouth and Address Foot-Fetish Gate
The New York Jets' Rex Ryan needs to take his feet out of his mouth. Usually, when you hear the saying that someone has their foot in their mouth it means that they are saying things that are not very intelligent. However, in this instance, Ryan has figuratively put both of his feet in his mouth to intentionally avoid addressing what will become known as Foot-Fetish Gate.
According to Deadspin.com, a woman who looks very similar to Ryan's wife Michelle has been posting videos onto YouTube about feet fetishes. In addition, if you listen to one of the videos posted the voice sounds similar to Ryan's. The YouTube account ("ihavepretty feet") that originally contained these videos was so popular that YouTube allegedly terminated the account for terms of service violations.
Foot-Fetish Gate was on the Cover of today's New York Daily News. According to NJ.com, when Ryan was asked about the videos in a press conference today he stated, "This is a personal matter and I'm not going to discuss it. This is a personal matter, I hope you can respect the fact I don't want to discuss it."
Ryan should have followed the way Dave Letterman handled his social media situation when Letterman was blackmailed about his personal conduct last year. On December 2, 2009, I blogged about how well Letterman handled his social media crisis and stated that Tiger Woods should follow David Letterman's social media crisis playbook. David Letterman came out publicly very quickly on his show and admitted what had happened. Letterman's honest response made the story die very early in the news cycle with no apparent professional consequences.
In contrast, Tiger Woods for months refused to address his personal problems that became public soon after Thanksgiving 2009. Woods' handling of his social media crisis has derailed his career, cost him millions in sponsorship dollars and destroyed his marriage. The final chapter on Brett Favre's sexting scandal has not been written yet so it is too early to properly review his social media crisis response.
From the facts I have seen so far, it does not appear that Rex Ryan or his wife have engaged in any activity that could cause him legal problems. Therefore, I would advise Rex Ryan to come clean and make this a non-story quickly. Ryan may want to take a page from Hugh Grant's personal incident from 15 years ago when Grant was caught with a hooker. Grant did the talk show circuit and made light of the matter. Grant's career did not suffer because he apologized and acted sincere and audiences have embraced him ever since. If you win football games people generally don't care what you do in your spare time. Even then, the U.S. is a very forgiving country. For example, Michael Vick has resurrected his career due to his recent on the field play and his positive contributions to his surrounding community.
Since Ryan and his wife may only be guilty of poor decision making he should do a 180 as soon as possible and give a press conference that honestly addresses Foot-Fetish Gate before this weekend's NFL games begin. Nobody cares what Ryan and his wife do in their spare time as long as the Jets win. However, if the Jets lose this Sunday and don't make or go far in the playoffs Ryan and/or his wife's off the field activities may be further questioned. Personally, I can't wait to see and hear what the Chicago Bear fans will say to Ryan at this weekend's game. Are you ready for some football?
To learn how to properly handle a social media crisis you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
According to Deadspin.com, a woman who looks very similar to Ryan's wife Michelle has been posting videos onto YouTube about feet fetishes. In addition, if you listen to one of the videos posted the voice sounds similar to Ryan's. The YouTube account ("ihavepretty feet") that originally contained these videos was so popular that YouTube allegedly terminated the account for terms of service violations.
Foot-Fetish Gate was on the Cover of today's New York Daily News. According to NJ.com, when Ryan was asked about the videos in a press conference today he stated, "This is a personal matter and I'm not going to discuss it. This is a personal matter, I hope you can respect the fact I don't want to discuss it."
Ryan should have followed the way Dave Letterman handled his social media situation when Letterman was blackmailed about his personal conduct last year. On December 2, 2009, I blogged about how well Letterman handled his social media crisis and stated that Tiger Woods should follow David Letterman's social media crisis playbook. David Letterman came out publicly very quickly on his show and admitted what had happened. Letterman's honest response made the story die very early in the news cycle with no apparent professional consequences.
In contrast, Tiger Woods for months refused to address his personal problems that became public soon after Thanksgiving 2009. Woods' handling of his social media crisis has derailed his career, cost him millions in sponsorship dollars and destroyed his marriage. The final chapter on Brett Favre's sexting scandal has not been written yet so it is too early to properly review his social media crisis response.
From the facts I have seen so far, it does not appear that Rex Ryan or his wife have engaged in any activity that could cause him legal problems. Therefore, I would advise Rex Ryan to come clean and make this a non-story quickly. Ryan may want to take a page from Hugh Grant's personal incident from 15 years ago when Grant was caught with a hooker. Grant did the talk show circuit and made light of the matter. Grant's career did not suffer because he apologized and acted sincere and audiences have embraced him ever since. If you win football games people generally don't care what you do in your spare time. Even then, the U.S. is a very forgiving country. For example, Michael Vick has resurrected his career due to his recent on the field play and his positive contributions to his surrounding community.
Since Ryan and his wife may only be guilty of poor decision making he should do a 180 as soon as possible and give a press conference that honestly addresses Foot-Fetish Gate before this weekend's NFL games begin. Nobody cares what Ryan and his wife do in their spare time as long as the Jets win. However, if the Jets lose this Sunday and don't make or go far in the playoffs Ryan and/or his wife's off the field activities may be further questioned. Personally, I can't wait to see and hear what the Chicago Bear fans will say to Ryan at this weekend's game. Are you ready for some football?
To learn how to properly handle a social media crisis you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, December 2, 2010
Did a Social Media "October Surprise" Derail the U.S. 2022 World Cup Bid?
There will be a tremendous amount of soul searching in the coming weeks from the U.S. soccer community regarding its failed 2022 World Cup bid. U.S. bid chairman Sunil Gulati did everything legally possible to bring the World Cup competition back to the United States. Gulati traveled all over the world and enlisted President Clinton and Oscar winner Morgan Freeman for the final presentation. Unfortunately, that was not enough. Qatar was awarded the 2022 World Cup.
After FIFA announced who would host the 2022 World Cup Gulati stated, "Can I sit here today and say these are the seven things that we would do different? No..I think we did everything we could." President Obama weighed in and stated it was the "wrong decision." As a U.S. soccer fan, I am disappointed about the outcome. However, I am not surprised.
According to ESPN, the U.S. bid "far exceeded its rivals in the areas of ticketing, media rights, licensing, hospitality and sponsorship." Having the best bid or pitch does not guarantee success. Even though there have been accusations that graft may have occurred during the bid process, the bottom line is that the U.S. will not be hosting the 2022 World Cup.
In my opinion, the latest WikiLeaks document release may have swayed the voters. In other words, Social Media may have been the cause of the U.S. not being the host of the 2022 World Cup. Some of my colleagues may think I am off my rocker and that I sound like a modern day Fox Mulder right out of the X-Files. However, during the past several days the WikiLeaks U.S. cable document release has dominated international news. This story has been on the cover of every major news publication all over the world. You had to be living in a cave without a modern day electronic device not to hear about it.
WikiLeaks is a website that relies on user generated content. According to its website it is, "a non-profit media organization dedicated to bringing important news and information to the public." On November 28, 2010, WikiLeaks made available on its website more than 250,000 secret U.S. diplomatic cables. The fact that WikiLeaks was able to obtain these secret cables in the first place demonstrates that the U.S. has a serious problem with data security that I am hoping will be resolved in the near future. However, the content inside some of the cables provides the impression that some of the U.S. State Department employees are using diplomatic cover to spy. This allegation along with many other embarrassing revelations such as how U.S. diplomats view some world leaders was not helpful to the U.S. World Cup bid.
If I was a World Cup voter from another country I may have been angry at the U.S. and may have have taken my anger out against it by voting for Qatar. I may have asked myself, "if the World Cup is held in the U.S. will my fellow countrymen and diplomats have to worry about being spied on during the competition?
It appears that WikiLeaks has been in possession of these documents for some time. Therefore, why were these documents released just a few days before the World Cup vote? Was this release an "October Surprise" that was done with the precision akin to a smart bomb? Is WikiLeaks part of a modern day SPECTRE (Special Executive for Counter Intelligence, Terrorism, Revenge and Extortion) that wreaked havoc on the world in the James Bond books and movies? The latest WikiLeaks document release is extremely politically damaging and it appears that it was intentionally timed to inflict maximum political and economic damage on the United States. Why else were the documents released over Thanksgiving weekend just before the World Cup vote?
To learn more about these issues you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved
After FIFA announced who would host the 2022 World Cup Gulati stated, "Can I sit here today and say these are the seven things that we would do different? No..I think we did everything we could." President Obama weighed in and stated it was the "wrong decision." As a U.S. soccer fan, I am disappointed about the outcome. However, I am not surprised.
According to ESPN, the U.S. bid "far exceeded its rivals in the areas of ticketing, media rights, licensing, hospitality and sponsorship." Having the best bid or pitch does not guarantee success. Even though there have been accusations that graft may have occurred during the bid process, the bottom line is that the U.S. will not be hosting the 2022 World Cup.
In my opinion, the latest WikiLeaks document release may have swayed the voters. In other words, Social Media may have been the cause of the U.S. not being the host of the 2022 World Cup. Some of my colleagues may think I am off my rocker and that I sound like a modern day Fox Mulder right out of the X-Files. However, during the past several days the WikiLeaks U.S. cable document release has dominated international news. This story has been on the cover of every major news publication all over the world. You had to be living in a cave without a modern day electronic device not to hear about it.
WikiLeaks is a website that relies on user generated content. According to its website it is, "a non-profit media organization dedicated to bringing important news and information to the public." On November 28, 2010, WikiLeaks made available on its website more than 250,000 secret U.S. diplomatic cables. The fact that WikiLeaks was able to obtain these secret cables in the first place demonstrates that the U.S. has a serious problem with data security that I am hoping will be resolved in the near future. However, the content inside some of the cables provides the impression that some of the U.S. State Department employees are using diplomatic cover to spy. This allegation along with many other embarrassing revelations such as how U.S. diplomats view some world leaders was not helpful to the U.S. World Cup bid.
If I was a World Cup voter from another country I may have been angry at the U.S. and may have have taken my anger out against it by voting for Qatar. I may have asked myself, "if the World Cup is held in the U.S. will my fellow countrymen and diplomats have to worry about being spied on during the competition?
It appears that WikiLeaks has been in possession of these documents for some time. Therefore, why were these documents released just a few days before the World Cup vote? Was this release an "October Surprise" that was done with the precision akin to a smart bomb? Is WikiLeaks part of a modern day SPECTRE (Special Executive for Counter Intelligence, Terrorism, Revenge and Extortion) that wreaked havoc on the world in the James Bond books and movies? The latest WikiLeaks document release is extremely politically damaging and it appears that it was intentionally timed to inflict maximum political and economic damage on the United States. Why else were the documents released over Thanksgiving weekend just before the World Cup vote?
To learn more about these issues you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved
Wednesday, October 13, 2010
Brett Favre, Sexting, and Social Media Crisis Management
Brett Favre, the NFL, and the Minnesota Vikings have a social media public relations crisis that needs to be resolved immediately. This matter was allegedly caused by Brett Favre's innapropriate use of social media and electronic communication devices.
According to Deadspin, in 2008 while Brett Favre was playing for the New York Jets he contacted Jets hostess Jenn Sterger mulitple times in order to spend some "personal time" with her. It appears that Ms. Sterger was not interested in spending "personal time" with Favre. On Deadspin.com's website it is also alleged that Favre may have tried to have inappropriate contact with other females who had some type of professional relationship with the Jets organization. The messages allegedly left by Favre on Sterger's voice mail appear to be very troubling. In addition, it is alleged that Favre sent pornographic photos of himself electronically to Sterger.
On December 2, 2009, and on December 10, 2009 I discussed how Tiger Woods should handle his social media crisis. Unfortunately, Woods did not follow my advice and he lost his family, his reputation, millions of dollars in endorsements, and the ability to focus on his professional career.
As of this writing, Brett Favre has not publicly addressed in detail this matter and has reportedly only apologized to his teammates for being a distraction. Favre has said little to the media regarding the allegations against him. However, Favre has not stated that he is innocent of these allegations.
If Favre directly addresses this matter he has to be careful about what he says because there may be legal issues in addition to the NFL personal conduct policy issues that need to be resolved. At first glance, it appears that any possible legal issues may only be civil and not criminal in nature. One possible legal issue may be sexual harassment. However, this situation is fluid and may change depending on the facts uncovered.
Therefore, I advise Favre to do what I advised Woods to do: sit down with your legal counsel and tell them exactly what happened so your legal team can draft and execute a strategy that will keep your reputation intact. Favre's relationship with his family, fans, sponsors (Ex: Wrangler), the NFL community, etc... depends on Favre working closing with his legal team to resolve this matter. If there is a possibility that Favre's accuser has evidence that may damage Favre's reputation it may be in Favre's best interests to reach a confidential settlement with his accuser so Favre can keep his image intact. I would hate to see Favre experience the same type of downward spiral that has engulfed Tiger Woods.
This matter should be a wake up call to everyone to watch what you post on the Internet. In particular, you should be careful about what you write in an email, what you say in a voice mail or text message, and what you post on a social media site such as Facebook, MySpace, and Twitter, etc...
To learn how to protect your social media profile you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
According to Deadspin, in 2008 while Brett Favre was playing for the New York Jets he contacted Jets hostess Jenn Sterger mulitple times in order to spend some "personal time" with her. It appears that Ms. Sterger was not interested in spending "personal time" with Favre. On Deadspin.com's website it is also alleged that Favre may have tried to have inappropriate contact with other females who had some type of professional relationship with the Jets organization. The messages allegedly left by Favre on Sterger's voice mail appear to be very troubling. In addition, it is alleged that Favre sent pornographic photos of himself electronically to Sterger.
On December 2, 2009, and on December 10, 2009 I discussed how Tiger Woods should handle his social media crisis. Unfortunately, Woods did not follow my advice and he lost his family, his reputation, millions of dollars in endorsements, and the ability to focus on his professional career.
As of this writing, Brett Favre has not publicly addressed in detail this matter and has reportedly only apologized to his teammates for being a distraction. Favre has said little to the media regarding the allegations against him. However, Favre has not stated that he is innocent of these allegations.
If Favre directly addresses this matter he has to be careful about what he says because there may be legal issues in addition to the NFL personal conduct policy issues that need to be resolved. At first glance, it appears that any possible legal issues may only be civil and not criminal in nature. One possible legal issue may be sexual harassment. However, this situation is fluid and may change depending on the facts uncovered.
Therefore, I advise Favre to do what I advised Woods to do: sit down with your legal counsel and tell them exactly what happened so your legal team can draft and execute a strategy that will keep your reputation intact. Favre's relationship with his family, fans, sponsors (Ex: Wrangler), the NFL community, etc... depends on Favre working closing with his legal team to resolve this matter. If there is a possibility that Favre's accuser has evidence that may damage Favre's reputation it may be in Favre's best interests to reach a confidential settlement with his accuser so Favre can keep his image intact. I would hate to see Favre experience the same type of downward spiral that has engulfed Tiger Woods.
This matter should be a wake up call to everyone to watch what you post on the Internet. In particular, you should be careful about what you write in an email, what you say in a voice mail or text message, and what you post on a social media site such as Facebook, MySpace, and Twitter, etc...
To learn how to protect your social media profile you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Sunday, September 12, 2010
Corporate Counsel's IP Trademark, Copyright & Licensing Cousel Forum
On September 14th and September 15, ALM's Corporate Counsel will be hosting a seminar that will discuss current intellectual property issues. The conference's keynote speaker will be Marybeth Peters, Register of Copyrights. Intellectual Property practitioners from all over the country will be speaking and will be in attendance.
Some of the topics that will be discussed at the conference include: Protecting Your IP in a Digital Environment, Monetizing Your Copyright and Trademarks, Recent Online Litigation Developments, Structuring Licensing Programs, and IP Issues in Social Media Marketing.
Some of the organizations that will be represented at the event include: The New York Times, the Recording Industry Association of America, The Author's Guild, Gannett Co., the U.S. Copyright Office, News Corporation, Comcast Entertainment Group, Conde Nast, ESPN, ABC, and NBC Universal.
The Conference will be held at The Harvard Club of New York. For more information click here.
[Full Disclosure: Shear on Social Media Law is part of ALM's Law.com Blog Network]
Some of the topics that will be discussed at the conference include: Protecting Your IP in a Digital Environment, Monetizing Your Copyright and Trademarks, Recent Online Litigation Developments, Structuring Licensing Programs, and IP Issues in Social Media Marketing.
Some of the organizations that will be represented at the event include: The New York Times, the Recording Industry Association of America, The Author's Guild, Gannett Co., the U.S. Copyright Office, News Corporation, Comcast Entertainment Group, Conde Nast, ESPN, ABC, and NBC Universal.
The Conference will be held at The Harvard Club of New York. For more information click here.
[Full Disclosure: Shear on Social Media Law is part of ALM's Law.com Blog Network]
Saturday, August 28, 2010
Facebook is a Trademark Protection Hypocrite
Facebook is the 800 pound gorilla of social media and it is doing everything in its power to stay the Big Man in Social Media (BMISM) (akin to the Big Man on Campus-BMOC). These actions include protecting its intellectual property through litigation.
Therefore, I find it rather hypocritical that Facebook is suing a company calling itself Teachbook.com and claiming that Teachbook.com is misappropriating the distinctive "BOOK" portion of Facebook's trademark. I believe that Facebook filed this lawsuit because it believes if it doesn't try to stop Teachbook.com from utilizing "BOOK" in its name other companies may try to utilize the term "BOOK" in their name and perform social networking. Facebook is not the first company to do social networking and it will not be the last company to do so. However, Facebook is doing social networking better than anyone else at this point.
Under Facebook's logic, Redbook magazine may want to look into suing Facebook for trademark infringement because Redbook has a stronger claim to the word "BOOK" than does Facebook. Redbook has been around for about 100 years longer than Facebook. In addition, it appears that Redbook has had an online presence longer than Facebook and has had an online community of users longer than Facebook. In addition, some of Redbook's users are the same type of users who may also utilize Facebook. Therefore, Redbook may have as strong of a claim against Facebook as Facebook does against Teachbook.com
It is extremely hypocritical for Facebook to claim that others are infringing on its own mark when Facebook freely allows and enables its users to infringe on the trademarks of others. Facebook knows or should know that its platform is rife with trademark infringement. Since football season is upon us, I will use the NFL as an example of how Facebook is enabling trademark infringement on its own web site. When you log into Facebook and type in "NFL" you will see a large number of users utilizing the NFL's marks without the NFL's permission. In turn, Facebook is monetizing this infringement by the advertising on its web site. Therefore, Facebook does not have any incentive to stop trademark infringement on its web site because it is profiting from the massive trademark infringement that its platform enables.
Under current trademark law, Facebook is not under any obligation to remove an infringing mark until it is notified by a rights holder of the alleged infringement. Facebook does have a mechanism in place for intellectual property rights holders to notify them of infringing material. However, Facebook should do more to protect trademark owners. Until Facebook adequately addresses trademark infringement on its own web site, it should not accuse others of trademark infringement. Remember the old saying, "people in glass houses should not throw stones?" It appears that Facebook doesn't believe in this saying because Facebook is acting like a trademark protection hypocrite.
To learn how to protect your trademarks on the Internet and on Social Media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Therefore, I find it rather hypocritical that Facebook is suing a company calling itself Teachbook.com and claiming that Teachbook.com is misappropriating the distinctive "BOOK" portion of Facebook's trademark. I believe that Facebook filed this lawsuit because it believes if it doesn't try to stop Teachbook.com from utilizing "BOOK" in its name other companies may try to utilize the term "BOOK" in their name and perform social networking. Facebook is not the first company to do social networking and it will not be the last company to do so. However, Facebook is doing social networking better than anyone else at this point.
Under Facebook's logic, Redbook magazine may want to look into suing Facebook for trademark infringement because Redbook has a stronger claim to the word "BOOK" than does Facebook. Redbook has been around for about 100 years longer than Facebook. In addition, it appears that Redbook has had an online presence longer than Facebook and has had an online community of users longer than Facebook. In addition, some of Redbook's users are the same type of users who may also utilize Facebook. Therefore, Redbook may have as strong of a claim against Facebook as Facebook does against Teachbook.com
It is extremely hypocritical for Facebook to claim that others are infringing on its own mark when Facebook freely allows and enables its users to infringe on the trademarks of others. Facebook knows or should know that its platform is rife with trademark infringement. Since football season is upon us, I will use the NFL as an example of how Facebook is enabling trademark infringement on its own web site. When you log into Facebook and type in "NFL" you will see a large number of users utilizing the NFL's marks without the NFL's permission. In turn, Facebook is monetizing this infringement by the advertising on its web site. Therefore, Facebook does not have any incentive to stop trademark infringement on its web site because it is profiting from the massive trademark infringement that its platform enables.
Under current trademark law, Facebook is not under any obligation to remove an infringing mark until it is notified by a rights holder of the alleged infringement. Facebook does have a mechanism in place for intellectual property rights holders to notify them of infringing material. However, Facebook should do more to protect trademark owners. Until Facebook adequately addresses trademark infringement on its own web site, it should not accuse others of trademark infringement. Remember the old saying, "people in glass houses should not throw stones?" It appears that Facebook doesn't believe in this saying because Facebook is acting like a trademark protection hypocrite.
To learn how to protect your trademarks on the Internet and on Social Media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, June 16, 2010
Intellectual Property Law is Useless in the Social Media Age
The major tools that companies have to protect their intellectual property rights in the Social Media Age were created before and during the Internet Age of the late 1990's. Under current law, copyright and trademark holders have several different remedies available to go after cyber-squatters and those who utilize copyrighted material and trademarks without permission. Some of the tools available include the Lanham Act and the Anti-Cyber Squatting Protection Act, The Digital Millenium Copyright Act, and ICANN's Uniform Domain Dispute Resolution Policy.
Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.
Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.
Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.
The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.
To learn how to combat the theft of your company's intellectual property via social media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.
Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.
Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.
The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.
To learn how to combat the theft of your company's intellectual property via social media you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, May 20, 2010
Social Media Sports Marketing and Branding
Traditional sports marketing and brand management is in transition. For years, the professional sports leagues have relied on radio and print newspapers to provide them free marketing. The leagues provided journalists open access to their games and in return sports writers would report on the games, the players, and the teams to their audience. This basic model worked for many years. When television became popular in the 1950's, the model was tweaked and the television networks started to pay handsomely for sports content. In the 1970's, Ted Turner once again tweaked the model via cable television.
Over the past several years, we have watched the beginning of the end of print media, a changing radio landscape and a transformation from watching television via cable to the Internet. This media transformation has changed the sports marketing and branding paradigm. Consumers have become extremely sophisticated and are tuning out traditional advertising. People do not want to be sold to. They want to engage in a conversation with a brand. Passion is the name of the game and the best medium to harness this passion is social media. Social media is not just the Internet. Social media is about interacting with a brand and feeling connected to it.
The top consumer cult brand is Apple. The unquestioned American sports cult brand is the NFL. Each of these organizations have spent years connecting with their followers. The NFL's cult brand has been forged by the "Greatest Game Ever Played," "The Ice Bowl," and players like the Baltimore Colts' Johnny Unitas and the Cleveland Browns' Jim Brown. Games and players come and go. However, the experiences that fans have with these events and the players is what keeps fans excited and interested in the NFL.
Social media is all about passion. When a Facebook user is excited or upset he posts to his Facebook wall. In response, the Facebook user's friends may engage in a conversation about the post. An excellent example of this interaction occurred on the Facebook page "Betty White to Host SNL (please?)!" Even though Betty White has been in the entertainment business for more than 60 years, she may end up being best remembered for how she became the host of an episode of Saturday Night Live.
Several months ago, a Betty White fan created a Facebook page requesting that Betty White host Saturday Night Live. The Facebook page's popularity grew to a point where Lorne Michaels, the creator of Saturday Night Live could not ignore it so he invited Betty White to host the show. NBC knew or should have known that the Betty White episode would have a built in audience that would enable them to sell the advertising for the episode at a premium. Betty White was hilarious on the show and it was a ratings success.
Brands need to learn how to engage with their customers. If companies understand how to properly utilize social media they will be able to better predict the success of their marketing campaigns. In addition, they will be able to fully leverage the value of their brands to others who want to be connected to them.
Unfortunately, too many companies think the answer to engaging social media users is to focus their strategy on posting on their Facebook wall, or tweeting about new product lines and sales, and building applications that capture a customer's private information. Congress is in the process of drafting new online privacy regulations that may limit or change how personal information is collected and utilized. Therefore, the current preferred method of obtaining a customer or a potential customer's data via an application when a customer visits a Facebook wall or clicks on a link may soon be obsolete.
In the Social Media Age, there is no substitute for interactive customer engagement. Building a cult following is achievable if your company is ready, willing, and able to create and follow a detailed strategy. To learn how to design and implement a successful social media sports marketing and branding campaign that will abide by the soon to be enacted Social Media Privacy Protection Act you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Over the past several years, we have watched the beginning of the end of print media, a changing radio landscape and a transformation from watching television via cable to the Internet. This media transformation has changed the sports marketing and branding paradigm. Consumers have become extremely sophisticated and are tuning out traditional advertising. People do not want to be sold to. They want to engage in a conversation with a brand. Passion is the name of the game and the best medium to harness this passion is social media. Social media is not just the Internet. Social media is about interacting with a brand and feeling connected to it.
The top consumer cult brand is Apple. The unquestioned American sports cult brand is the NFL. Each of these organizations have spent years connecting with their followers. The NFL's cult brand has been forged by the "Greatest Game Ever Played," "The Ice Bowl," and players like the Baltimore Colts' Johnny Unitas and the Cleveland Browns' Jim Brown. Games and players come and go. However, the experiences that fans have with these events and the players is what keeps fans excited and interested in the NFL.
Social media is all about passion. When a Facebook user is excited or upset he posts to his Facebook wall. In response, the Facebook user's friends may engage in a conversation about the post. An excellent example of this interaction occurred on the Facebook page "Betty White to Host SNL (please?)!" Even though Betty White has been in the entertainment business for more than 60 years, she may end up being best remembered for how she became the host of an episode of Saturday Night Live.
Several months ago, a Betty White fan created a Facebook page requesting that Betty White host Saturday Night Live. The Facebook page's popularity grew to a point where Lorne Michaels, the creator of Saturday Night Live could not ignore it so he invited Betty White to host the show. NBC knew or should have known that the Betty White episode would have a built in audience that would enable them to sell the advertising for the episode at a premium. Betty White was hilarious on the show and it was a ratings success.
Brands need to learn how to engage with their customers. If companies understand how to properly utilize social media they will be able to better predict the success of their marketing campaigns. In addition, they will be able to fully leverage the value of their brands to others who want to be connected to them.
Unfortunately, too many companies think the answer to engaging social media users is to focus their strategy on posting on their Facebook wall, or tweeting about new product lines and sales, and building applications that capture a customer's private information. Congress is in the process of drafting new online privacy regulations that may limit or change how personal information is collected and utilized. Therefore, the current preferred method of obtaining a customer or a potential customer's data via an application when a customer visits a Facebook wall or clicks on a link may soon be obsolete.
In the Social Media Age, there is no substitute for interactive customer engagement. Building a cult following is achievable if your company is ready, willing, and able to create and follow a detailed strategy. To learn how to design and implement a successful social media sports marketing and branding campaign that will abide by the soon to be enacted Social Media Privacy Protection Act you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, April 6, 2010
Entertainment Social Media Branding Contracts
Branding products and services and how the law protects your brand is extremely important in the social media age. Recording artists, writers, and film makers are utilizing social media to create their brand and to include other brands in their work to attract the attention of corporate sponsors.
Recently, a New York Times article discussed how some entertainment contracts include specific branding clauses and that some talent feel pressured to include certain brands in their work to attract sponsors. Television product placement is not new. During most live television programs the announcers usually state throughout the program that the show or event is sponsored by xyz company. One of the most famous movie product placements was Reese's Pieces in the movie E.T. in 1982. When I watched the movie as a child I had no idea that this was a product placement. However, as an adult I would expect that most adults who watch the movie know or should know that including Reese's Pieces prominently in the movie was a big advertising coup for Hershey.
Under the recently revised FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising "material connections" between advertisers and endorsers must be disclosed. However, I am wondering when is this threshold actually met? For example, if an artist includes a brand in his work in the hopes that the brand will end up sponsoring his work, and then the brand eventually sponsors the artist's work does this connection need to be disclosed since the original work was not created with a "material connection" between the artist and the brand? If an artist posts his original work on Youtube or another social media website before there is a "material connection" but later a corporate sponsor is attracted to the project does the artist now need to disclose this sponsorship?
These are some of the many legal issues that the social media age has created. Constantly changing technology will only make these issues more difficult to analyze. To learn more about these issues you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Recently, a New York Times article discussed how some entertainment contracts include specific branding clauses and that some talent feel pressured to include certain brands in their work to attract sponsors. Television product placement is not new. During most live television programs the announcers usually state throughout the program that the show or event is sponsored by xyz company. One of the most famous movie product placements was Reese's Pieces in the movie E.T. in 1982. When I watched the movie as a child I had no idea that this was a product placement. However, as an adult I would expect that most adults who watch the movie know or should know that including Reese's Pieces prominently in the movie was a big advertising coup for Hershey.
Under the recently revised FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising "material connections" between advertisers and endorsers must be disclosed. However, I am wondering when is this threshold actually met? For example, if an artist includes a brand in his work in the hopes that the brand will end up sponsoring his work, and then the brand eventually sponsors the artist's work does this connection need to be disclosed since the original work was not created with a "material connection" between the artist and the brand? If an artist posts his original work on Youtube or another social media website before there is a "material connection" but later a corporate sponsor is attracted to the project does the artist now need to disclose this sponsorship?
These are some of the many legal issues that the social media age has created. Constantly changing technology will only make these issues more difficult to analyze. To learn more about these issues you may contact me at http://www.shearlaw.com/.
Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, December 10, 2009
Social Media, Poor Choices, and Bad Advice Is Destroying Tiger's Ability to Recover From TigerSexgate
What is Tiger's legal, social media, and public relations team doing to stop the bleeding? So far, Team Tiger's strategy has been to duck and cover, and hope for the cavalry to arrive sooner rather than later. As General Custer found out, the cavalry doesn't always come in time to save you. The entire media and social media world, including the New York Post, US Magazine, and The Today Show, are circling and Tiger's response has been to go into seclusion and avoid everyone and everything in the hopes that TigerSexgate will somehow go away.
As I stated in a previous post, Tiger must be proactive during this time of crisis. Unfortunately, Team Tiger is in paralysis and unable to create an effective crisis response. On the home page of http://www.tigerwoods.com/ it should state in big bold letters "I am Sorry" and Tiger should personally state in a video posted on his website that he is sorry for the all of the pain he has caused his wife and family, he is sorry to his fans, the public, and to his sponsors and that he will work to regain their trust. The video should be released to every social media website to get his message across. As of this writing, Tiger and his website are trying to ignore TigerSexgate and this strategy is failing.
Is Team Tiger taking direction from Tiger, his personal attorney(s), his agent(s), or his publicist(s)? Whomever is the general in this fiasco must be replaced immediately. If Tiger is making the decision to stay out of the spotlight he needs to summon the courage to face the public and come clean. Leaders and role models address criticism head on and personally take full responsibility for their actions. So far, Tiger has failed to live up to the image that Team Tiger has created. This situation reminds me of the scene in The Wizard of Oz when the curtain on the Wizard is pulled back and there is nothing there but a man, not a "Wizard."
It has been approximately two weeks, and I am very surprised that his sponsors that include: Accenture, Electronic Arts, General Motors, Gillette, Pepsi, Proctor and Gamble, and Tag Heuer have been generally quiet since the story broke. If I was the legal counsel for any of Tiger's sponsors I would be reviewing the endorsement contract that my company has with Tiger and analyzing the "morals clause" that I assume was inserted in each contract. A contract morals clause provides a company the ability to terminate the services of an endorser if the endorser engages in activity that is inconsistent with a company's public image.
If the morals clause is properly drafted, I would advise my client to drastically redraft the endorsement contract or sever all ties with Tiger since my client is paying for an image that no longer exists. Companies want to be associated with people who are at the top of their profession, have the right personal image, and who know how to react when either their professional or personal image is under attack since an attack on the endorser is also an attack on the company's brand. Tiger no longer has the image companies desire and his ostrich like "head in the sand" reaction to this crisis demonstrates he is out of touch with the customers whom he is paid to attract.
When dealing with high profile clients, an attorney should ask his client(s) about any "possible future challenges" that may be on the client's radar. Sometimes the client will not be forthcoming, other times the client may provide this information. Due to the nature of the attorney-client relationship an attorney should make the client feel comfortable enough to provide this type of information so an attorney may be proactive in preventing a public relations nightmare that may have corporate and legal consequences.
Immediately after reports of Tiger's multiple infidelities become public, Tiger's legal team should have sprung into action. Tiger's legal team should have had the contact information for each woman with whom he had an inappropriate relationship with so they could negotiate a settlement to keep the relationship a private matter. In particular, Tiger should have worked with his legal team to list in order the women who have the most "evidence" of a relationship to the least amount of evidence. The women with whom he "sexted" with, left voice mails with, emailed with, or left any other possible evidence (Think Monica Lewinsky's Blue Dress), should have been targeted first. These women should have been offered appropriate settlements with iron clad confidentiality agreements.
Tiger should have followed Michael Jackson's lead and spent the money necessary to keep his image intact. Michael Jackson's image took a hit but he was never convicted of child molestation. Michael Jackson's settlement with his accuser(s) allowed him to keep his freedom and to go back to making music. Unfortunately, he tragically passed away earlier this past year before he was able to make another comeback.
Tiger's "transgressions" will not put him jail. However, it may forever change his relationship with his wife and family, eliminate hundreds of millions of dollars in marketing opportunities, destroy his public persona forever, and may affect his ability to focus on playing golf. I thought Tiger was a lock to easily surpass Jack Nicklaus on the all-time major wins list. After watching his response to TigerSexgate, I believe that Tiger will be lucky to win one more major. I hope he proves me wrong, but at this point in time I doubt it.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
As I stated in a previous post, Tiger must be proactive during this time of crisis. Unfortunately, Team Tiger is in paralysis and unable to create an effective crisis response. On the home page of http://www.tigerwoods.com/ it should state in big bold letters "I am Sorry" and Tiger should personally state in a video posted on his website that he is sorry for the all of the pain he has caused his wife and family, he is sorry to his fans, the public, and to his sponsors and that he will work to regain their trust. The video should be released to every social media website to get his message across. As of this writing, Tiger and his website are trying to ignore TigerSexgate and this strategy is failing.
Is Team Tiger taking direction from Tiger, his personal attorney(s), his agent(s), or his publicist(s)? Whomever is the general in this fiasco must be replaced immediately. If Tiger is making the decision to stay out of the spotlight he needs to summon the courage to face the public and come clean. Leaders and role models address criticism head on and personally take full responsibility for their actions. So far, Tiger has failed to live up to the image that Team Tiger has created. This situation reminds me of the scene in The Wizard of Oz when the curtain on the Wizard is pulled back and there is nothing there but a man, not a "Wizard."
It has been approximately two weeks, and I am very surprised that his sponsors that include: Accenture, Electronic Arts, General Motors, Gillette, Pepsi, Proctor and Gamble, and Tag Heuer have been generally quiet since the story broke. If I was the legal counsel for any of Tiger's sponsors I would be reviewing the endorsement contract that my company has with Tiger and analyzing the "morals clause" that I assume was inserted in each contract. A contract morals clause provides a company the ability to terminate the services of an endorser if the endorser engages in activity that is inconsistent with a company's public image.
If the morals clause is properly drafted, I would advise my client to drastically redraft the endorsement contract or sever all ties with Tiger since my client is paying for an image that no longer exists. Companies want to be associated with people who are at the top of their profession, have the right personal image, and who know how to react when either their professional or personal image is under attack since an attack on the endorser is also an attack on the company's brand. Tiger no longer has the image companies desire and his ostrich like "head in the sand" reaction to this crisis demonstrates he is out of touch with the customers whom he is paid to attract.
When dealing with high profile clients, an attorney should ask his client(s) about any "possible future challenges" that may be on the client's radar. Sometimes the client will not be forthcoming, other times the client may provide this information. Due to the nature of the attorney-client relationship an attorney should make the client feel comfortable enough to provide this type of information so an attorney may be proactive in preventing a public relations nightmare that may have corporate and legal consequences.
Immediately after reports of Tiger's multiple infidelities become public, Tiger's legal team should have sprung into action. Tiger's legal team should have had the contact information for each woman with whom he had an inappropriate relationship with so they could negotiate a settlement to keep the relationship a private matter. In particular, Tiger should have worked with his legal team to list in order the women who have the most "evidence" of a relationship to the least amount of evidence. The women with whom he "sexted" with, left voice mails with, emailed with, or left any other possible evidence (Think Monica Lewinsky's Blue Dress), should have been targeted first. These women should have been offered appropriate settlements with iron clad confidentiality agreements.
Tiger should have followed Michael Jackson's lead and spent the money necessary to keep his image intact. Michael Jackson's image took a hit but he was never convicted of child molestation. Michael Jackson's settlement with his accuser(s) allowed him to keep his freedom and to go back to making music. Unfortunately, he tragically passed away earlier this past year before he was able to make another comeback.
Tiger's "transgressions" will not put him jail. However, it may forever change his relationship with his wife and family, eliminate hundreds of millions of dollars in marketing opportunities, destroy his public persona forever, and may affect his ability to focus on playing golf. I thought Tiger was a lock to easily surpass Jack Nicklaus on the all-time major wins list. After watching his response to TigerSexgate, I believe that Tiger will be lucky to win one more major. I hope he proves me wrong, but at this point in time I doubt it.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, October 24, 2009
NFL Fights Over Access To College Game Day Content
The NFL is currently in a standoff with the company that video records college football games for eight conferences and then delivers it digitally to the NFL. The content is primarily utilized by the NFL's College Advisory Committee to form an official opinion on college juniors who are thinking about entering the NFL draft before their college eligibility is exhausted. The College Advisory Committee acts as another source for potential early entrants to the NFL draft because without this committee prospects would only be able to obtain information about their possible draft prospects from sports agents and their college football coaches.
The company that creates the content and then delivers it to the NFL, XOS Technologies, has reportedly made a mulit-million dollar rights fee request on behalf of the college football conferences it works with to the NFL for content that was previously delivered free. The College Advisory Committee is made up of participants from each NFL team and it provides a draft opinion of college underclassmen. This arrangement has provided college juniors an opinion that is not biased by the opposing interests that sports agents and college coaches inherently possess. The analysis that the College Advisory Committee provides is mutually beneficially to both the NFL and to underclassmen. Potential draft prospects are able to obtain a professional opinion about their readiness for the NFL while the NFL has been able to scout potential draft picks with free access to game day tapes.
From a legal and business perspective, there are several issues that need to be determined. What is the monetary value of the game tapes to the NFL? Who owns the rights to these game day tapes? Does the conference own the game day content or do the two schools who play the game own the rights? If the content is used for purposes other than talent evaluation, such as for entertainment or analysis on the NFL Network, what is the value of this use? If a college underclassman would like to obtain the game day tapes and post clips on a social media website to promote himself can the player also obtain the rights for this use? How much is the College Advisory Committee's talent evaluation services worth to college football programs and their players?
These questions need to be answered sooner rather than later because there is a high probability that a larger number of juniors than usual will declare themselves available for the upcoming NFL draft due to the possibility that a new NFL Collective Bargaining Agreement that is in the initial stages of negotiation may put some type of cap on rookie salaries.
In my opinion, the NFL should pay some type of fee for the game day tapes depending on the type of rights that are granted. Since NFL teams pay tens of millions of dollars to top draft picks, game day tapes are very valuable in the evaluation process. I do not believe it would be practical to charge potential draftees for an independent evaluation because most likely they could not afford the cost of the review. However, I think some type of deal should be worked out that would allow a player to obtain game day content that would allow them to directly promote themselves on social media websites.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The company that creates the content and then delivers it to the NFL, XOS Technologies, has reportedly made a mulit-million dollar rights fee request on behalf of the college football conferences it works with to the NFL for content that was previously delivered free. The College Advisory Committee is made up of participants from each NFL team and it provides a draft opinion of college underclassmen. This arrangement has provided college juniors an opinion that is not biased by the opposing interests that sports agents and college coaches inherently possess. The analysis that the College Advisory Committee provides is mutually beneficially to both the NFL and to underclassmen. Potential draft prospects are able to obtain a professional opinion about their readiness for the NFL while the NFL has been able to scout potential draft picks with free access to game day tapes.
From a legal and business perspective, there are several issues that need to be determined. What is the monetary value of the game tapes to the NFL? Who owns the rights to these game day tapes? Does the conference own the game day content or do the two schools who play the game own the rights? If the content is used for purposes other than talent evaluation, such as for entertainment or analysis on the NFL Network, what is the value of this use? If a college underclassman would like to obtain the game day tapes and post clips on a social media website to promote himself can the player also obtain the rights for this use? How much is the College Advisory Committee's talent evaluation services worth to college football programs and their players?
These questions need to be answered sooner rather than later because there is a high probability that a larger number of juniors than usual will declare themselves available for the upcoming NFL draft due to the possibility that a new NFL Collective Bargaining Agreement that is in the initial stages of negotiation may put some type of cap on rookie salaries.
In my opinion, the NFL should pay some type of fee for the game day tapes depending on the type of rights that are granted. Since NFL teams pay tens of millions of dollars to top draft picks, game day tapes are very valuable in the evaluation process. I do not believe it would be practical to charge potential draftees for an independent evaluation because most likely they could not afford the cost of the review. However, I think some type of deal should be worked out that would allow a player to obtain game day content that would allow them to directly promote themselves on social media websites.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Tuesday, September 1, 2009
Tweeting Can Be Hazardous to Your Game
Twitter is currently in the fad stage of American Society. It is trying to move into the mainstream to become as ubiquitous as email but only time will tell if this will happen. I have a Twitter account but I do not use it often because I do not think people want to know what I am doing all the time. I doubt my followers would be interested in knowing what type of diaper my son had this morning and whether I changed it.
As an attorney, most of the things that people would be interested in hearing me tweet about are priviledged attorney-client communications. Therefore, I rarely tweet since some of the things I could possibly say may provide a clue as to whom I am representing, the type of matter I am working on, or a possible strategy that I may be thinking about employing on a client matter.
The U.S. Open has joined the NFL and some Fortune 500 Companies in instituting a social media policy. The NFL announced yesterday that its players will be allowed to utilize social media during the season. However, NFL players, coaches, and football operations personnel will not be authorized to use social media 90 minutes before a game or during a game. The last time I checked the NFL's Collective Bargaining Agreement I didn't see anything directly relating to social media so until this issue is collectively bargained I think this policy strikes a good balance between employee and employer rights.
However, the United States Tennis Association's (USTA) Twitter policy appears ambiguous and difficult to enforce. The USTA's policy appears to try to control the actions of not just its members but also its member's "entourages." As anyone who has watched the funny HBO series Entourage, controlling a member of your entourage is not always as easy as you may believe. Therefore, the USTA's social media may sound like a great idea but for all practical purposes it is almost impossible to hold a player responsible for the tweets of another.
In order for both the NFL and USTA's social media policies to be successful they need to be:
1) Collectively bargained or negotiated between the parties so a mutually acceptable policy is crafted.
2) Clear and unambiguous so all parties know what is expected.
3) Enforced in a consistent manner so all parties know the consequences for non-compliance.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
As an attorney, most of the things that people would be interested in hearing me tweet about are priviledged attorney-client communications. Therefore, I rarely tweet since some of the things I could possibly say may provide a clue as to whom I am representing, the type of matter I am working on, or a possible strategy that I may be thinking about employing on a client matter.
The U.S. Open has joined the NFL and some Fortune 500 Companies in instituting a social media policy. The NFL announced yesterday that its players will be allowed to utilize social media during the season. However, NFL players, coaches, and football operations personnel will not be authorized to use social media 90 minutes before a game or during a game. The last time I checked the NFL's Collective Bargaining Agreement I didn't see anything directly relating to social media so until this issue is collectively bargained I think this policy strikes a good balance between employee and employer rights.
However, the United States Tennis Association's (USTA) Twitter policy appears ambiguous and difficult to enforce. The USTA's policy appears to try to control the actions of not just its members but also its member's "entourages." As anyone who has watched the funny HBO series Entourage, controlling a member of your entourage is not always as easy as you may believe. Therefore, the USTA's social media may sound like a great idea but for all practical purposes it is almost impossible to hold a player responsible for the tweets of another.
In order for both the NFL and USTA's social media policies to be successful they need to be:
1) Collectively bargained or negotiated between the parties so a mutually acceptable policy is crafted.
2) Clear and unambiguous so all parties know what is expected.
3) Enforced in a consistent manner so all parties know the consequences for non-compliance.
Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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