Supreme Court Issues Groundbreaking Social Media Law Case

The U.S. Supreme Court earlier today issued a unanimous ruling in the City of Ontario, California et al v. Quon government workplace privacy sexting case. The Court ruled that a public employer's review of text messages on a publicly owned electronic device was a reasonable search under the Fourth Amendment and that the Ninth Circuit erred by concluding otherwise. The Court focused on the Fourth Amendment search issue and side stepped the broader expectation of privacy issue.

On December 14, 2009, I blogged about this case and I opined that the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review all electronic communications that are sent via an employer owned account. My opinion was based on the premise that while using employer owned devices employees either know or should know that their employer may need to review the messages that have been sent via the electronic device for a work-related purpose.

Here, the Petitioner, City of Ontario, had purchased pagers for Respondent, Quon and others who were employed by the City. Only after Quon and other public employees had exceeded the character limits that the City had purchased on their behalf for several months did the City inquire why this was occurring. Upon reviewing the transcripts of the messages that Quon was sending, the City realized that a large percentage of the sent messages were personal and not work related. Quon was disciplined for misusing his City owned electronic device so he filed a suit against the City. The City of Ontario had a policy on computer, Internet, and e-mail use that clearly stated that the city had the right to monitor such communications. The policy allowed “light personal communications” but said “users should have no expectation of privacy or confidentiality.” Sergeant Quon signed a statement agreeing to the City's policy.

The Quon decision should be a wake up call to government employees. In the public sector, electronic communications sent through employer owned electronic accounts may not be subject to the Fourth Amendment’s protection against unreasonable searches, as long as employers have “a legitimate work-related purpose” for inspecting the communications. Both public and private employers need to have policies in place that outline the usage policy of employer owned devices and accounts because the line is blurring between personal and business use of electronic devices and accounts. I predict that the Supreme Court will be hearing more cases in the near future regarding similar issues and that the court will need to understand the specific nuances of social media and the electronic devices utilized to access these new technologies and platforms.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.

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.

Disney's Facebook Application For Toy Story 3 Is Inherently Dangerous

Disney's new Facebook application made a splash in the New York Times yesterday. The New York Times article states, "[t]he application, called Disney Tickets Together, could transform how Hollywood sells movie tickets by combining purchases with the powerful forces of social networking." The Disney Tickets Together application will alert your Facebook friends and invite them to also buy tickets to the same Disney event.

Oliver Luckett, SVP and GM of DigiSynd, a Disney subsidiary is quoted in the article as saying “[t]he whole idea is that no friend gets left behind.” This mentality is extremely troubling because it demonstrates Disney's utter lack of concern for the personal privacy of its customers who purchase tickets via Facebook. Creating a Facebook application that focuses on Toy Story 3's target audience, children, is especially upsetting. This application will allow child predators to know who will be attending an event and where they will be. It is an application that child molesters can easily utilize to target their prey.

Applications that utilize a Facebook user's information is a lazy method of social media engagement. Instead, Disney should immediately terminate this application and focus its Facebook strategy on engaging and conversing with its more than 3.5 million Facebook "likes." A review of Disney's Facebook page demonstrates that Disney's current strategy involves posting a link and then letting its fans comment on the post. Where is the social media interaction and engagement?

Facebook needs to ban application developers from being able to access your personal information as a prerequisite to utilizing an application. There is no reason why an application that asks, "What old school WWF wrestler are you?" needs to know your personal data and your friends information. For the record, I was labeled Hulk Hogan. All the information the application needs is included in the questions the application asks you to answer.

Facebook and Disney need to share the blame for this new application because Facebook's recent privacy controls do not go far enough in protecting a user's personal information. The new privacy controls should enable a user to have full control over his or her Facebook profile. Unfortunately, the new privacy controls do not fully enable a user to pick and choose what information is shared. Facebook's failure to properly protect its users' personal information demonstrates why the Social Media Privacy Protection Act is needed.

I grew up loving Disney movies, their theme parks, and the entire Disney experience. Walt Disney was a visionary in experiential marketing. However, this Facebook application that Walt Disney's successors have created has crossed the line. Disney's new application is an inherently dangerous one because it provides child molesters with information they may utilize to harm our families. I would highly advise other entertainment companies not to follow in Disney's footsteps because there is no legitimate reason for a movie studio to create an application that utilizes its Facebook's customers' data.

I challenge Facebook CEO Mark Zuckerberg and Disney's CEO Robert A. Iger, and any other Fortune 500 CEO to provide a rational reason why access to my personal Facebook data or my friends' data is required for Disney's Tickets Together application or any other Facebook application. To resolve this issue you may contact me directly at 301-652-3600 or at bshear@shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

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.

FINRA's Social Media Regulations

Recently, I have been counseling members of the securities industry about the new Financial Industry Regulatory Authority (FINRA) social media regulations. During a meeting last week, I was asked what type of interaction is acceptable between a registered securities employee and a Facebook friend who also happens to be a client of the securities industry professional. I gave the standard line that lawyers are taught to provide, "it depends." There is no bright line definition of what is acceptable interaction so this is a major dilemma for securities firms, their employees, their clients, and prospective clients.

The lines between business and personal activities in social media are becoming more blurred every day. In 1999, NASD (FINRA's predecssor) stated that if a registered representative participates in an Internet chat room he is subject to the same requirements as if he was making a personal presentation to a group of investors. This statement was codified in 2003 by NASD's Rule 2210 when NASD included in the definition of "public appearance" the "interactive electronic forum" or as most users call it a "chat room".

In January 2010, FINRA's Social Networking Task Force created a Regulatory Notice to provide securities firms guidance on business related social media usage. Even though the Regulatory Notice does not provide guidelines on securities employees' personal social media use, it is highly advisable for most firms to create a social media policy for employees' personal use. Creating a social media policy for non-business activities may be considered very intrusive. However, social media is the most intrusive and interactive technology currently in widespread use so it is imperative that employees understand that sensitive work matters should not be discussed on both business and personal social media accounts. No two firms have the same corporate culture so adopting the business or personal social media policy of another firm without consulting your legal, IT, human resources department, and a social media professional is a recipe for disaster.

To learn more about creating a business and/or a personal social media policy for your firm you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The White House and Social Media Follow Up

On May 4, 2010, I mentioned in my blog post, "Will the White House's Use of Social Media Eventually Diminish Access to the President?" some of the legal, political, and societal ramifications if the White House moves away from fully informing the traditional press and instead utilizes social media to communicate directly to its constituents. The article "White House leaning on its Press Office, Not the Media, to Get Message Out" that was published on Foxnews.com today discusses some of the issues that I blogged about last week.

It appears that traditional media outlets are starting to now agree with my observation that the White House is trying to bypass the traditional media in favor of social media. The White House is changing its social media strategy because this modification enables the administration to bypass the traditional media's filter which may determine how people analyze the President's policies. The President's staff appears to be duplicating its successful campaign strategy. Traditional print media is on the verge of extinction. Traditional radio and television media is in transition. Unless these traditional media outlets adapt to the social media age they will go the way of the dodo bird.

To learn more about about social media you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Will the White House's Use of Social Media Eventually Diminish Access to the President?

Social Media is here to stay. In fact it may become the dominant form of communication in the near future. The legal, political, and societal ramifications are tremendous. President Obama utilized social media to get elected and his administration is using social media to actively engage with the American people and the rest of the world. For example, the White House has an official Twitter account and is currently looking for a Twitterer-In-Chief. White House spokesman Robert Gibbs recently stated that Twitter is an amazing tool.

The White House has about 1.75 million followers and follows just 99 other accounts. However, if you look closely at who the White House follows you will see that it mainly follows other U.S. government entities. It also follows 10 Downing Street, aka the British Prime Minister's office. Why doesn't the White House follow more governments, both friend and alleged foe? Is the White House intentionally keeping the number of accounts it follows in double digits?

The White House also has an official blog. Will the official White House Blog soon replace press releases since a blog is a de facto press release mechanism. I am wondering if the President's weekly radio address and daily press briefings will soon be replaced by the pre-recorded podcast. From the White House's own website you can watch official presidential events via audio or video podcast.

In the future, a majority of the population may rely solely on social media as their news gathering resource. During a major political crisis will the White House turn mainly to social media to get its message out and stop the daily press briefing? Will the current or a future President decide to stop the traditional daily briefings and instruct the White House Press Secretary to utilize daily interactive webinars? Will the White House limit the media's access for political purposes?  The First Amendment and freedom of the press issues that are intertwined with social media and politics are mind boggling. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Goldman Sachs, the Shitty Deal, and Social Media Public Relations

Goldman Sachs is the most respected name on Wall Street. The firm has no peers. If you ask any college or graduate business school finance major where they want to work a large majority would respond without question, Goldman Sachs.

In an article from the New York Times a couple years ago, the firm was nicknamed "Government Sachs" because so many of its employees end up working for the U.S. government. Some prominent Goldman alumni include: former Treasury Secretaries Henry Fowler, Robert Rubin, Hank Paulson, and current World Bank President Robert Zoellick, and former U.S. Senator Jon Corzine.

In general, Goldman Sachs senior executives shy away from publicity while working for the firm. This strategy has helped create a mystic about the company. Social media has forever changed the public relations game. Goldman Sachs' reputation was tarnished this past week in a manner that would not have been possible before the age of social media.

It is very rare for members of Congress to use foul language in any context during televised proceedings. However, Senator Carl Levin chastised Goldman Sachs because an employee of the firm had stated in an internal email that a collateralized debt obligation called Timberwolf I that Goldman was selling was a "shitty deal." Senator Levin persistently asked about and berated Goldman Sachs about the "shitty deal" numerous times throughout the hearings.

Goldman Sachs EVP and Chief Financial Officer David Vinair's testimony will forever live on in social media due to the interesting exchange that occurred between himself and Senator Levin. When Senator Levin grilled Vinair about the "shitty deal" internal Goldman Sachs email Vinair stated, "I think that is very unfortunate to have [that comment] on email." It sounded as though the entire audience was stunned by that statement and then a delayed laughter was heard in the background. Vinair later corrected himself but the damage had already been done.

As Gretchen Morgenson of the New York Times has pointed out and last week's hearings clearly demonstrated there are so many conflicts of interest on Wall Street. These conflicts have been around for years. Lawyers are not allowed to have these types of conflicts so why are the "Masters of the Universe" allowed to have these types of conflicts?

These hearings come on the heels of last week's SEC fraud complaint against Goldman Sachs and one of its employees. In addition, President Obama and Congress are also currently battling over a financial regulatory overhaul. The Goldman Sachs testimony that I watched reminded me of the movie Wall Street and Gordon Gekko's "Greed is Good" speech because some of the Goldman Sachs employees who testified sounded as though they were about to utter Gekko's line that "greed for a lack of a better word is good. Greed is right. Greed works."

Goldman Sachs has weathered numerous scandals and controversies during its 140+ years in existence. Each time the firm has rebounded and come back stronger than ever. The company may be one of only a few brands that may be immune to the social media age. Even though the brand may not suffer in the long run, there will be employees who are scapegoated to protect the firm's image. Therefore, in the social media age, lawyers need to be well versed in not only the legal matters before them but how their clients may be perceived on social media. To learn more about this issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved. 

The Social Media Privacy Protection Act

The Social Media Privacy Protection Act is coming. No such Act has yet been proposed but I predict this will be the name of the Act that regulates social media. The FTC is currently seeking comments on revising the Children's Online Privacy Protection Act (COPPA) to include social media. The U.S. Senate Committee on Commerce, Science, and Transportation held a hearing today examining how social media affects COPPA. Congress is first determining how it can best protect children's privacy in the social media age. The next logical step is to create legislation that will include the rest of their constituents.

On April 27, 2010, 4 U.S. Senators: Charles E. Schumer (D-NY), Michael Bennet (D-CO), Mark Begich (D-AK), and Al Franken (D-MN) publicly released a letter that they had sent to Facebook's CEO Mark Zukerberg regarding their concerns about Facebook's recent user changes. The letter urged Facebook to allow its users to have more personal control over the site's privacy settings, to change its third party data storage policy, and to simplify the instant personalization options.

I recommend that my clients set their Facebook privacy settings so that only their Facebook Friends are able to view their personal information. It is best to limit the amount of information you post and share because if your account is ever compromised by a hacker the information can easily be used to steal your identity. If you thought that the Internet Age was scary after watching Sandra Bullock's 1995 movie "The Net" the Social Media Age should terrify you.

The recent MIT Project Gaydar study proved that just by inserting data from a person's social media profile it is possible to determine a person's sexuality. I was surprised that so many people appeared shocked by this finding. If a researcher or marketer knows a Facebook user's personal habits and hobbies, friendships, employer/job, socio-economic status, marital/family status they have the ability to make a lot of predictions about a person. Profiling or forecasting is used by law enforcement, wall street, and meteorologists. The more data points you have the more accurate the model or prediction.

In the "old days," your mail carrier knew more about your business than even your neighbors. Then it was the credit card companies and credit bureaus who knew everything financially about you. However, nobody or entity, including the U.S. Government has the treasure trove of data that Facebook accumulates about its users. Most of these other entities spend a tremendous amount of time and resources collecting your data. What is amazing is that Facebook is able to obtain its data for free directly from its users. Not a bad concept, eh?

It appears that Facebook does not yet understand that its recent actions have angered enough people to prompt Congress to become extremely interested in the manner in which it utilizes and protects its users' personal information. Facebook's failure to acknowledge this is evident by the response that Facebook's spokesman Andrew Noyes and vice president of global communications and public policy Elliot Schrage have so far provided.

Social media users must be careful about what personal information they post on social media. In addition, social media users must be proactive in protecting their social media personal profile and companies must be aware of the legal liabilities that they may incur for mishandling their customer's personal information. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Oprah's and Dove Soap's Internet Monetization and Branding Strategy

Oprah is one of the smartest entrepreneurs in the world and has one of the most recognizable brands and her team works hard to protect and grow her brand. As a Baltimore native, I would like to think that it was the water that Oprah imbibed during her long stint working in Baltimore that prepared her for success. Right after she left Baltimore for Chicago she became a world wide superstar. Some other former Baltimoreans who became successful after leaving Baltimore include: Babe Ruth, Barry Levinson, John Waters, and Nancy Pelosi so I hope my water theory is true because it gives hope to all former Baltimoreans (myself included).

My two year old son is very musically inclined and enjoys watching and singing and dancing to various music videos that we watch together on Youtube. A couple of weeks ago, my wife started watching with our son a clip from a recent Oprah show that included the cast from Glee singing Journey's "Don't Stop Believin". For about a week they went to Youtube to watch the clip.

All of sudden the clip they were watching disappeared and a message appeared stating that the clip was removed due to copyright infringement. My wife then went to Oprah.com and found the clip. However, on Oprah.com, there was a 30 second Dove commercial that had to be watched before the cast of Glee's rendition of Don't Stop Believin was played. The web page that contained the Glee clip was fully branded by Dove. In addition, Dove was a sponsor of the actual episode that aired the performance on The Oprah Winfrey Show and is a sponsor on Fox.com's Glee home page.

Even though it appears that Oprah and Dove fully branded the entire user experience they both missed out on creating a Social Media 360 Deal. This was an internet brand campaign and not a social media brand campaign. To learn how to fully monetize your social media assets you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Protecting Your Social Media Profile

The 2008 election cycle was the first social media election. President Obama is the first U.S. President to successfully harness the power of social media to get elected. According to a post on Read Write Web from November 2008, President Obama had a major social media advantage over Senator McCain. For example, a few days before the November 2008 election Obama had 844,927 MySpace friends while Mcain had only 219,404. This major disparity was a harbinger of the future.

Even though President Obama successfully utilized social media to become President of the United States, he is not the first social media President. The first social media President will be the first elected President who has years of tweets, Facebook posts, blog entries, podcasts, etc... that will need to be reviewed by campaign managers, public relation firms, lawyers, political strategists, etc...The legal and political ramifications are mind boggling.

As of this writing, the confirmation process of Professor Goodwin Liu, a nominee to the U.S. Court of Appeals for the Ninth Circuit is in motion and questions have been raised as to why Prof. Liu did not turn over all of the documents that the Senate Judiciary Committee initially requested. As far as I know, Professor Liu does not have years of tweets, Facebook posts, blog entries, podcasts, etc...to review. However, what if he does? How would this affect his nomination?

Earlier this week, the Library of Congress announced that all public tweets will be saved for posterity. First, Google decided to archive all tweets. Now the Library of Congress will be saving all your tweets for posterity. Therefore, it is more important than ever to protect your social media profile. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

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.

A Catch-22 in the Social Media Age

Earlier this week a prominent client of mine asked me what I can do to stop a local blogger from constantly writing about my client’s personal activities and linking to my client’s company’s website. I explained the available options and discussed with him why it may be best to ignore the blogger. I mentioned the Jones Day v. Blockshopper.com case that was settled last year where a large law firm, Jones Day, filed suit against an internet company that listed the real estate purchases of some of the law firm’s employees and then linked to the employee’s law firm biographies. This case was settled out of court and the bottom line is that Blockshopper.com is still able to link public land records to the web biographies of Jones Day employees.

I told my client something I’m sure many are taught in elementary school, to ignore the bully, and eventually, the bully will go away. My client was told not to do what Jerry Seinfeld did to Kathy Griffin’s character Sally Weaver in the January 1998 Seinfeld episode “The Cartoon.” In the social media age, if a cease and desist letter is sent to a blogger, assuming the blogger can be identified, it will just provide the blogger more ammunition and will most likely increase traffic to the blog. Most of my clients are Type-A personalities and it goes against their make-up to ignore this type of situation. In general, the 1st Amendment protects most forms of speech. Therefore, in many of these situations it is be best not to legitimize the offending blog’s comments by providing a response. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Social Media and The Right To Publicity

The Right To Publicity enables a person to profit off of his or her name or likeness. This right varies from state to state and may be extremely valuable for entertainers and professional athletes who have a marketable name or likeness. This right was first recognized by the U.S. Courts in 1953 in Halean v. Topps 202 F.2d 866. Here, a baseball card company sued a competitor alleging that it owned an exclusive right to photograph and to publicize ballplayers they had under contract and that a competitor did not have the right to utilize a player's likeness in their trading card set while the player was still under contract with the plaintiff.

The Halean Court stated, "that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made 'in gross,' i. e., without an accompanying transfer of a business or of anything else. Whether it be labelled a 'property' right is immaterial; for here, as often elsewhere, the tag 'property' simply symbolizes the fact that courts enforce a claim which has pecuniary worth. This right might be called a 'right of publicity.' For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures."

Entertainers, professional athletes, and celebutantes (those famous for being famous) have a love-hate relationship with the paparazzi. The paparazzi serve a much needed role because they help these people stay in the public's eye. According to the L.A. Times, some celebrities may have formal or informal relationships with members of the paparazzi which feed the publicity machine that is so important to an entertainer's career. Celebrities sell the rights to their images for staggering sums. For example, according to the Today Show, Brad Pitt and Angelina Jolie sold photos of their newborn twins to People and Hello magazines for $14 million dollars. Pitt and Jolie had previously sold images of their daughter Shiloh to Getty Images for a donation and to People and Hello Magazine for $4 million dollars.

The bottom line is that social media may create new revenue opportunities that if properly utilized has the potential to become major income streams. Unfortunately, for most entertainers and professional athletes the window of opportunity to capitalize on these assets is short and unpredictable. Therefore, social media action plans must be created and implemented during the early stages of a celebrity's or athlete's career. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Entertainment and Sports Social Media 360 Deals

Entertainment 360 deals have slowly become more prevalent in the entertainment industry during the past several years. A 360 deal is one where a record label or entertainment company signs talent to a contract that entitles the company to derive revenue not only from traditional revenue streams such as record sales, but also from all other monetizeable areas. These other revenue streams may include: endorsements, merchandise sales, publishing, and songwriting. The revenue splits vary depending upon an artist's leverage in the industry.

Michael Jackson's estate recently signed an agreement that appears to be what I call an "Entertainment Estate 360 Deal." The full details of the contract have not been disclosed as of this writing, but, it sounds as though this agreement may break new ground in the manner in which entertainment contracts slice and dice intellectual property rights. According to the New York Times, the agreement "allows Sony and the estate [of Michael Jackson] to collaborate on a wide range of lucrative licensing arrangements, like the use of Jackson music for films, television and stage shows and lines of memorabilia that will be limited only by the imagination of the estate and the demand of a hungry worldwide market." This groundbreaking agreement appears to fully monetize Michael Jackson's estate in a manner that will benefit the estate's heirs. Unfortunately, Michael Jackson may have been worth more dead than alive.

Generally, in the world of U.S. professional sports 360 deals do not exist. NFL players have an incentive to quickly monetize their social media assets because on average their playing careers last approximately 3.4 years. In order to properly leverage an athlete's social media potential, a player needs to be both talented on the field and have a unique and engaging personality. Chad Ochocinco has this rare combination and this has enabled his twitter account to attract sponsors due to his ability to acquire almost 800,000 followers.

As an attorney who practices entertainment, sports, and social media law, I am always looking for creative methods to increase my client's revenue streams. In my February 5, 2010 post, I discussed "Social Media Engagement Product Placement Contracts." To elaborate further on this topic, I want to discuss what I call "Social Media 360 Deals." In a "Social Media 360 Deal," a celebrity or professional athlete's social media assets are utilized to create synergy for both the client and the sponsor(s). Due to the constantly changing technology of social media, an attorney must be well versed in not only contract law and intellectual property, but must also fully understand the technology and capabilities of the social media platforms involved. To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.