© 2012 lathrop & gage llp presented by: lincoln d. bandlow, esq. lathrop & gage llp 1888...

© 2012 Lathrop & Gage LLP

Presented by:

Lincoln D. Bandlow, Esq.Lathrop & Gage LLP

1888 Century Park East, Suite 1000Los Angeles, CA 90067

[email protected]

I CAN’T BELIEVE I [LITIG]ATE THE WHOLE THING:HOW PROMOTIONAL USE OF SOCIAL MEDIA

CAN GET YOU SUED


Publisher Liability

DefamationRight of PrivacyCopyright InfringementTrademark InfringementIdea Submission


Defamation

1. Publication2. of a defamatory statement3. that is “of and concerning” plaintiff4. that is false5. that is made with the requisite degree of fault6. Damages


Privacy Torts• Common Law of Privacy

– Article written in 1890, Harvard Law Review, by Warren and Brandeis.

• Right to be let alone.

• Today - most states either recognize common law privacy rights, or have statutes covering such rights.

• Four torts of invasion of privacy– Intrusion upon the plaintiff's physical and mental solitude or seclusion– Public disclosure of private facts.– Publicity that places the plaintiff in a false light.– Appropriation, for the defendant's benefit or advantage, of the

plaintiff's name or likeness. (Right of publicity).


Intrusion

• Focus is on newsgathering behaviors rather than what is published.

• Elements of Intrusion claim:– Intentional intrusion (physical or otherwise)– on the private affairs or concerns of another– done in a manner that is highly offensive to a reasonable

person.


Private Facts

Elements:• Public disclosure• Of a private fact• Which would be offensive and objectionable to a

reasonable person• Which is not of legitimate public concern

– If a matter of public record, by law a “matter of public concern.”


False Light

– Similar to defamation– Elements:

• Giving publicity• To a false statement• That is of and concerning the plaintiff• Which places the plaintiff in a false light highly

offensive to a reasonable person• Made with the requisite degree of fault• Damages


Right of Publicity

• Claim stems from the unauthorized use of person’s name, voice, likeness or identity (including sound-alike)

• Variety of legal claims can be asserted– Common law and statutory right of publicity claims– Lanham Act claims– Common law unfair competition

• California and many states recognize post mortem right of publicity


Right of Publicity

• Basic elements:– Defendant’s use of plaintiff’s identity to defendant’s

commercial or other advantage– Lack of consent– Damages

• Actual damages (lost licensing fee)• Punitive damages• Profits• Attorneys fees


Copyright Infringement• When does copyright protection attach to a work?

– Copyright protection subsists from the time the work is created in a fixed form

– No need to register or take action


Copyright Infringement• Copyright owner has five basic exclusive rights:

– right to reproduce (copy) the work– right to make derivative works (adapt) based on the

original;– right to distribute (by sale, license, rental, etc.) to the public

copies of the work– right to perform the work publicly– right to display the work publicly


Copyright Infringement• How long does copyright last?

– For works created after January 1, 1978:• the term is life of the author (or last surviving author in case of a

joint work) plus 70 years; or• In case of a work made for hire, 95 years from first publication or

120 years from date of creation, whichever is shorter– For works created before January 1, 1978:

• Generally, for works published between 1923 and December 31, 1977, the duration is a first term of 28 years and a renewal term of 67 years for a total of 95 years.

• But it can get complicated (notice, registration issues) – call the lawyer!


Copyright Infringement• Definition of infringement is simple – it is any violation of one

or more of the aforementioned exclusive rights

• “Strict Liability” scheme: no state of mind requirement for infringement– Lack of intent may be relevant to reducing damages, but is

no defense to liability


Copyright Infringement – Fair Use• Section 107 enumerates four factors:

– (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

– (2) the nature of the copyrighted work;– (3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and– (4) the effect of the use upon the potential market for or

value of the copyrighted work.


Trademark Infringement / Dilution• Trademark infringment

• No need for registration• Likelihood of consumer confusion• Dilution – Tarnishment or blurring


THANK YOU!

Presented by:Lincoln D. Bandlow, [email protected]

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© 2012 lathrop & gage llp presented by: lincoln d. bandlow, esq. lathrop & gage llp 1888...

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