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In this episode, Michelle Carter and I discuss some of the mistakes that bloggers make which result in a lawsuit. This can include trademark infringement (naming a blog after a registered trademark), copyright infringement (in pictures and music), and defamation.
Here is a lightly-edited transcript of the episode:
Anthony Verna:
Hi there. Welcome to the Law & Business Podcast. I’m joined with the lovely, beautiful, smart, intelligent Michelle Carter. How you doing?
Michelle Carter:
I am great. Thanks for having me again.
Anthony:
Anytime. I’m going to let you kick it off cause this topic was kind of your idea wasn’t it?
Michelle Carter:
Indeed it was. I think today we’re going to be talking about the five things as a blogger that can get you sued.
Anthony:
And I’m sure there’s more than five now that I think about it, but we’ve got five in mind though.
Michelle:
You’re the attorney so you would know better than I, but, I think that we have both found that there are five common mistakes that bloggers make that will tend to get them in hot water if not right away then in time because eventually they will find you and catch up with you.
Anthony:
We’ll go with that.
I’ll say this is a caveat to the show topic is that we’re giving five tips or five things to be wary of, but ultimately there’s always more than that. And these are five main ideas and five main thoughts. But, but anybody out there who has a blog in order to make money in order to advertise in order to keep business going, there’s just more than these five.
Michelle:
Fair enough. So number one on our list of five things that can get you sued as a blogger is naming your blog after another business.
Anthony:
Some examples that come to mind are IkeaHacker.
Michelle:
I can answer you Forever 21.
Anthony:
That’s a good one.
Michelle:
A Kindle Fire Department. One of my favorites of all time is Regretsry.
Anthony:
Right. And Regretsy is not around anymore.
Michelle:
No. April has moved on, but it was a great blog while it lasted. So, so why is it that naming your blog after another business could get you sued?
Anthony:
Well, for a lot of these businesses, obviously the business name is, is a trademark. And let me take a step back because I know not everybody listening has been listening since episode one. But the trademark is a business name, a business, a slogan, a logo that relates back to a business. Usually business people can own trademarks, but it basically identifies the source of goods and services and the quality of those goods and services. So something like Ikea, you think of Swedish furniture there. There you go. Swedish, that’s made in China. Right? Okay. Isn’t it all? But the idea of, of, of more than just Swedish furniture is I would say modular furniture, modern furniture. And what a website like – was it Ikea Hacks, Ikea hackers.net did, and I’m still not sure why you would want to do this, but they basically had their own ways of putting together Ikea furniture so that you could put together your bookshelf as a desk instead.
They had a lot of different projects, like they had one where you could buy an end table and make a guitar out of it. Is this fair use, or, why not? Yeah. Honestly, it may be. It’s, I know I read at least one comment where people said it was cheaper to buy Ikea furniture than it was to go to your local home improvement store and buy wood. So, and it’s already cut. It’s already polished. It’s already finished there. There are a lot of different projects. We certainly can’t fault them for their creativity.
I wouldn’t want to do anything like that, though.
Michelle:
Okay. Your opinions on this website aside the, the fact is it was a very popular website. They had a lot of readers.
Anthony:
Yes, absolutely. And there is delineation here as to why Ikea decided to stay away from a lawsuit. And then they went to start the trademark infringement suit because ikeahackers.net started to take in advertising because of course having a website that gets a lot of hits requires server space, requires an expense, especially when you’re storing all of that as well. At the very least, I wanted to cover those expenses if not make money and, and really turn it in, turn it into a business.
And frankly, I think all of us would love to do that with a blog. In this particular case, Ikea took umbrage to the selling of advertising and that’s when Ikea started the trademark infringement suit.
Because prior to that, it was just a hobby of a big a fan, being an aficionado of their thing. But once they started taking an advertising, now it’s a business.
Michelle:
What’s the difference? Exactly. No, really what’s the difference?
Anthony:
Because I want you to think about this because you’re not the lawyer here, but I want you to think about this, if that’s the true delineation then is is using Ikea beforehand acceptable and then, and then once you collect money using Ikea after that is not acceptable. Does that make any sense to you whatsoever?
Michelle:
Well, no. I would assume that if it’s an infringement, it’s an infringement regardless of whether it’s a hobby or a business, it’s just a matter of when, when do you become a big enough fish for Ikea?
Anthony:
It’s to start frying. Yes, exactly. And, I would say that’s exactly the correct answer. It’s not, that was not a legal issue. That was more of a practical issue. Right. Trademark infringement requires the use of goods and services, I mean, of the nature of the name, logo, whatever that mark is on other goods and services so that consumers are likely to confuse the two. Companies, the two products, the two sets of goods or services. Sure. I’d argue that Ikea is not in the business of selling their products to be used in another manner so that their end tables aren’t meant to be used as a guitar, so that their, bookshelves are not meant to be used as desks or something to that effect. So that really people who are going to Ikea hackers, whether or not Ikea hackers is getting, um, any money from advertising, people really aren’t all that confused. They’re going to Ikea hackers.net for a reason. Sure. And that purpose is to do something else to Ikea furniture. So I’d argue that there really isn’t a likelihood of confusion here for that particular reason.
Michelle:
No. If anything, I would say that it’s something that supports their brand. Like are there, their marketing department should be sad that they didn’t come up with it first.
Anthony:
Well, no business is going to ever think that way.
Michelle:
I disagree. Okay. How many times do you see food products offered with recipes for things that you would never think about cooking with them?
When Heinz Ketchup says: Have you ever thought about using Heinz Ketchup in these four dishes? Or you get Triscuit crackers and they say, use them this way. And by giving me additional ways to use the product, I’m encouraged to buy more, even though if it, that may not necessarily be the thing that I want.
Anthony:
Here’s why it’s not analogous because you’re talking about food. And I can put a Heinz Ketchup on a hotdog, on a hamburger or on ice cream, and I don’t necessarily have to mention that it’s an Oscar Meyer hotdog, that it’s a McDonald’s hamburger or that it’s Bryers ice cream.
Why? Why do that?
For me to be absurd is why. Whereas here, Ikea Hackers is all about going to Ikea, buying something from Ikea, opening it up and putting it together in a way that the directions don’t matter. So from Ikea’s standpoint, the two situations are not necessarily analogous. And that if you’re going to Ikea hackers.net, you’re looking to ultimately deface Ikea products, which of course you’re allowed to do once you have bought it.
Here I’d say ultimately I don’t really think that there is a likelihood is confusion between the two, but that if you’re naming your blog after somebody else’s trademark, it’s going, you’re going to find yourself in some level of hot water, whether it’s just a cease and desist letter or a full blown trademark infringement suit, you’re going to find that there’s going to be an issue.
Michelle:
So it’s, it’s not that they’re, if they were to rename the blog, Swedish furniture hacker and continue to doing business as normal, everything would be fine. It’s just the use of the word Ikea. That’s the problem.
Anthony:
I’m a lawyer, I’m going to be hesitant to use the phrase, everything’s going to be fine. But there are ways to structure that blog there. There are ways to structure that. Yes, exactly. Exactly. And I think that that’s, I think the lesson, although look, let’s start here. I’m fully acknowledging Ikea hackers, Regretsy, WTForever21.com certainly wouldn’t necessarily have the following if it were Swedish furniture hackers. People make terrible stuff and sell it and this fashion is is utterly ridiculous. I get it. I get it completely that having that tie in. But on the same token, that’s really a part of trademark infringement is that your, your piggy, your business is piggybacking off of somebody else’s business. We also have something that we call trademark dilution. And trademark dilution is about famous trademarks. Now. Now, first off, a company’s trademark has to be declared famous bite by a court in order to, to, to be able to claim trademark dilution. But of course, that seems to be –
Michelle:
So, Twitter fame and actual legal fame are two different.
Anthony:
Yeah, fame is fleeting. Fame is very, very fleeting. And fame is even a higher level than: we have a lot of sales. Okay. I was involved in a lawsuit where the plaintiff said, well, we have $300 million in sales and our advertising budget is gigantic. Not all even allowed to say the number, but it was gigantic. I don’t even remember the number, but it was gigantic. So the court said, okay, $300 million of sales a year is highly impressive. Guess what? It’s not famous. Famous trademark has to affect the average consumer in such a way. And in this particular case, I always go with McDonald’s because it’s a very classical Lee, a famous trademark. Everybody understands McDonald’s or the MC portion and what it, what it signifies. So if you’re looking at that writing a blog that specifically targets a company whose trademarks are famous, then you really have another reason not to name your blog after that company. Cause it may be trademark infringement, but it also may be trademark dilution as well. If you’re mark, if your blog, excuse me, is going to harm the value of, of one of those other.
Michelle:
I think that’s how WTForever21.com got in trouble was because a lot of their posts, especially when they were starting out, were showing instances of items from that store that were remarkably similar to items that were being sold in other retailers that are being sold on Etsy. Images that may have been borrowed.
Anthony:
Oh, they were not very kind to that chain when they first started out. And that’s probably how they got on the radar.
Michelle:
Well, I mean, that’s getting on the radar to begin with.
Anthony:
What that blog did is different than the name itself and so we can, we’ll talk a little bit about defamation a little later on, but I would say a lot of the things that, that it was doing was probably claimed to be defamation, which is totally different than thinking about how to name the blog or even how to talk about a company in a blog.
And I will say this: first off in the United States, we have the First Amendment and the First Amendment allows for free speech. And sometimes there’s commercial speech which is less protected than political speech. Certainly this is commercial speech here as well.
And you’re still allowed to opine and discuss facts about another company. So, so you can do that. And then we have in trademark law what’s called nominative views. And you can name a trademark if the only way that you’re going to be talking about it is by naming the trademark. And if you’re a product reviewer, the only thing that you’re going to be able to say is I bought an iPhone. I bought a Samsung Galaxy phone or I’m eating Hershey chocolate or, or whatever it is. You still, the only way that you can do it is by naming the product, right? Therefore, you have to be wary that it’s okay to name products. And then is that the reason why that your business exists? If it is, then you’re going to probably begin to fall over that trademark infringement life.
But, but there is, don’t, don’t get me wrong, it’s a very, very fine line between nominative use and naming your blog or your business after another company. Sure. And, and then what’s your, and then what’s you’re allowed to say in it. We’ll, we’ll talk about that a little later but, but here it’s just about naming it as and, and what to look out for in this particular section. Okay, got it. The other thing that I did want to point out is that, um, there was a card comparison site and let me see if I can find it. That was, um, that was sued as well for showing rates and fees of various different credit cards. And part of the issue was trademark infringement. But I will say this, a lot of bigger businesses are being over protective today.
And if you are a smaller business, if you are a blogger and you’re going to be using companies’ names, I’m not sitting here saying don’t do that because that, that has a chilling effect on speech and we don’t want that. On the same token, be wary that bigger companies are protecting their intellectual property much more than ever before. Those companies are finding where that intellectual property is being used more than ever before and they’re getting better at it every day. Yes. So yeah, you may receive a cease and desist letter if you’re naming other companies in it. I would say for a lot of bloggers, if you’re going to be talking about other companies, if you’re going to be reviewing products, make sure there’s somebody in your back pocket there who can give you a hand in making sure that your use of other company’s trademarks is within nominative use. And also within the first amendment of the constitution. It makes a lot of sense. I do my best to, to make a lot of sense. Okay.
Michelle:
And that’s why you get paid the big bucks. So let’s go on to number two in the list of, of things that are frequently getting bloggers sued, use of pictures owned by others.
Anthony:
I’ve had clients that have received fun copyright infringement: cease and desist letters. Yes. This isn’t a problem limited to bloggers by any stretch. No. And usually what a lot of people are complaining about these days are our Getty images, meaning that Getty images sends a letter that says you’re using our photograph in your website and here’s the, here’s the use of it in the, in the website, here’s our registration, copyright, registration of it. Here’s how it appears in our stock photo catalog. And here’s the typical licensing rate if pay us this and we’ll go away. So you basically are turning copyright infringement into a license. And a lot of people are not too thrilled with that. And the fact remains that under copyright law, and this isn’t even the digital Millennium Copyright Act and cause, I’ll talk about that in a bit, but under copyright law, the copyright owner’s the one who’s allowed to make copies to sell copies to publicly perform copies to licensed copies.
And I realize that online it’s really easy to right click save it. And then when you’re posting your own web page to put it on the page I’ll share because those images are free and everything on the Internet. I’m going to try to not be too cynical because I realize that a lot of people are used to the free thing. But the answer to the problem with that, but the problem with that is that right, you can’t just take, and as a content creator, I hope that that a lot of bloggers can put themselves on the other side of that equation as well, that they wouldn’t want their work necessarily taken and put elsewhere without proper payment. Of course. Yeah. And it’s not credit: credit is is nice, but that’s all it is, is credit.
It’s not a license. It’s not a sale. It’s not a purchase. And in these particular cases you’re going to get a cease and desist letter if you’re using somebody else’s image. And the reason why the Digital Millennium Copyright Act doesn’t protect you as the DMCA is meant for others. So that if your website is a user generated website, in other words, the content comes from the users. Think social media, Facebook, Twitter, Pinterest, Instagram, the pictures that are posted. If they violate traditional copyright philosophies such as copyright infringement, then the owner of the website has to receive the cease and desist letter before the owner of the website is sued. Okay. Yes. For Co for basically what, what would be contributory copyright infringement. So in this particular instance, it is the bloggers zone website. A, there’s the bloggers’ own ability to take the picture and put it on there.
And it’s the bloggers own liability. Sure. So the blogger needs to really make sure that a picture that is used is either properly licensed or original, right. And under properly licensing a picture, a lot of stock, um, a lot of stock photograph companies have licenses and you can easily, um, license that particular picture or license a whole group of pictures, right? And you can pay the royalty rate and that’s not really going to be an issue. Or if you need a photograph you could probably work a deal out with, with photographers to create bunches of photos that, um, can work for this particular use. And so it’s not much of an issue to actually create something or get your camera, get your phone camera, go take photos and this way they’re your photographs
Michelle:
And then there’s no question about who owns them.
Anthony:
None whatsoever. So I would say, I would say, yeah, avoid using somebody else’s, um, pictures and always, and always assume that it’s, that, that somebody’s copyright is registered and that if you’re going to use somebody else’s picture, you’ll get a cease and desist letter.
Michelle:
And also be reasonably careful about it as well. I’ve read multiple articles about people that were using Creative Commons images that they got. I’m not realizing that the user had uploaded a copyrighted image.
Anthony:
You know, the other issue with Creative Commons: as the person who is using that image, you’re still responsible for it even though you thought: oh, I’ll never have a problem.
I think people have to pay close attention to the kind of license that they’re, they’re getting. Some licenses allow you to use an image once and that’s it. Some images allow you to use that image however you’d like forever. Um, some licenses are restricted so you can use it on a blog, but you can’t use it in, say, a magazine. It’s really important for people to pay attention to, to what they’re using. I’ve also heard it suggested that once you get in an image that you also save a screen cap of the license because it’s not uncommon for a photographer to license an image to a website like stock photography.com or Iphoto or whatever for use and then sell it to someone like Getty five years down the line. And if Getty comes after you, you need to prove that you had that license when you first acquired the photograph.
Anthony:
I think what has to happen to that point is an understanding of the agreement at that point. Because if a photographer has licensed a photograph and then wants to sell his or her entire portfolio or collection to Getty, then if there’s an ongoing business relationship, the licensee needs to know that. And there has to still always be an open level of communication between the licensee and the license or photographer, so if Getty’s then buys the catalog and Getty sends a cease and desist letter, then there’s a level of communication or one that has broken down.
But the point is the blogger alone is responsible. You’re not going to get a letter from Fotolia saying, “Hey, by the way, we sold that image, you’re no longer licensed.”
You, you alone are responsible for what those on your property.
I would say if you’re the licensee, you should understand who your license or is. And if the license changes hands. You should know that from the very beginning that somebody is selling that picture. You really should.
Michelle:
All right, so let’s go on to the third most common reason. Bloggers manage to get themselves sued and that is pictures using pictures of people without their permission.
Anthony:
This is, from a practical standpoint, this is related to what we were just talking about from a legal standpoint, it’s actually not because we’re now into what we call states state rights of privacy and publicity, but quite often people are using a photograph and a photograph can have other rights as the content of the photograph. So, if there’s a photograph of a company’s trademark, then you have a copyright issue on the photograph itself and you might have a trademark issue on the trademark in the photograph. So in this particular case, you’ll, you may have the copyright issues that we were just talking about, if the photograph is not an photograph or isn’t licensed properly, but now because it’s a person’s image likeness, a sometimes a name, depending on what state you’re in now, the person’s right of privacy or publicity, again, depending on what state you’re in is infringed.
And that’s something a lot of bloggers don’t really think about because for a lot of pictures it’s just, it’s just not thought of like, oh, I can take a picture of somebody down the street. And sometimes that’s okay. Um, sometimes you can take a picture and it’s not okay. That that picture of somebody walking down the street, I think that you have an example of, well I think the, I think the most recent case that fits into people’s memory, it might be Katherine Heigl who sued a, the pharmacy, the New York City pharmacy.
Michelle:
Duane Reade.
Anthony:
Right. Cause Duane Reade – it’s a pharmacy in New York City in North Jersey. And that’s about all, I think.
Michelle:
I heard that at the one in Brooklyn, you can get beer and a manicure or –
Anthony:
Really? You can get a manicure?
Michelle:
It’s a destination.
Anthony:
Now. I didn’t know that cause I don’t get manicures.
That’s not my thing.
Anyway, you get more manicures than I do, right. Probably I would hope so. So in, in this particular instance, and Katherine Heigl was a pictured coming out of a Dwayne reed and carrying bags – branded Duane Reade bags. And of course, Duane Reade posted a tweet with that. And, and I think what makes that particular case so blatant is that it was Dwayne reed showing a picture of a celebrity that’s not in and who is not paid to endorse a Dwayne Reed. So it’s a blatant advertisement. So that particular instance is very, very blatant on the on use of somebody’s image. Sure. I would say for a lot of bloggers, it’s probably not going to be so blatant.
Now. It might be, and I’ve certainly have seen this, the picture of the blogger who is at a party and at a sponsored party and there were a couple celebrities there. So they take the picture and they put it on. So the question is then: does that create an endorsement of the blog? Is the blog making money? So therefore is, is that the kind of instance that a celebrity would be paid for on the same token for, um, more private citizens? Is there even a right for anybody to take the picture and use it? So that image and likeness, it always is going to revolve around is this an endorsement? Is this commercial speech? Is this something other than artistic? So, for example, if somebody is walking down the street, I take the picture and then I just sell the picture.
I will tell you in New York that is perfectly acceptable as somebody not having a right to privacy because cause somebody who’s just on the street now you take that picture and you say, Hey, this person’s wearing a X brand baseball cap. Look how great it is. People love it. Now you’re dealing with the commercial speech and the rights of privacy and publicity again being invoked because that’s an endorsement and people are usually paid for that particular endorsement. Sure. So I, I’d say that a lot of bloggers need to be wary about somebody’s image. If there’s one advice we always give to clients is, do you have this person’s permission? Right? Is it, do you have the permission? Is a written, did you pay for it? And, and the real key are one and two.
If you had to pay somebody for their permission, that’s acceptable. But do you have permission and is it written if their people’s images and likenesses appearing get permission. And if it’s something that’s not a part of the stock photography agreement or if it’s something that that’s just doesn’t exist that then it has to be taken off where you have to get permission of those people.
Michelle:
And most stock photography websites will have a line where it will show whether there a model release exists or does not exist. And I would say stay away from the ones where it doesn’t exist cause you just don’t know.
Anthony:
Yeah, I agree completely.
Michelle:
Number four on the list of ways that bloggers managed to get themselves sued use of others’ music. Well, this legal, this is so common.
Anthony:
Yes. This is copyright infringement. So a lot of what we were talking about with photographs works for music and that is – I hate to use the phrase “it’s copyrighted”, but you’ve heard of the phrase before, right?
And it’s music that I, I hate to say and copyright it cause it’s not really the case, but it’s music that is allowed to be in the public domain because the people who wrote it have given away their copyrights. But that’s not quite true either because a lot of people can, can join these uncopyrighted websites.
Stock photos except for music. Exactly. Thank you. We have a recent youtube blogger, her name is Michelle Phan and Michelle Phan was a, excuse me, is a makeup and self-help tutorial blogger. How am I doing?
Michelle:
You’re doing well.
Anthony:
So wonderful. I don’t watch too many makeup tutorials.
Michelle:
She’s pretty popular, I can assure you.
Anthony:
All right. She’s probably not with my particular popularity set.
Michelle:
Male lawyers are not her target demographic.
Anthony:
Yeah. Yeah. Male lawyers with bachelor’s in computer science. Not, I don’t think that’s what she’s telling. Yeah. Yeah. So what did she do? Well, she used songs, I guess his intro and outro music or his background music from, um, a label called ultra and ultra includes a cascade and, um, who, who else is, is included in there? What cascade is one cascade is one guy. If I find a list of others, I’ll let you know. But the issue is that Ms Fan has not, um, licensed any of that. She’s getting advertising revenue through youtube. Of course she’s getting thousands upon thousands of views. She has 74,000 subscribers. That’s really nice. Yes, it’s, yes. Channel 74,000 subscribers.
Michelle:
So you mean to tell me that if I run a business and I create a photo montage and I set that photo montage to a song by Dirks Bentley, I can’t just use that.
Anthony:
No, but
Michelle:
it’s the Internet and the Internet is free.
Anthony:
Okay. Sarcasm, massage, dripping wet, sarcasm aside. Yes. No, you can’t. There has to be a license and I will tell you that. I mean, I mean YouTube has done a very good job at not taking down videos because they’ve worked out with ASCAP and BMI and see suck away to take advertising rep a way to recognize what songs are being used and a way to take those royalties and, and move ’em over. Sure. So on one hand I’m really surprised that this was not what happened.
And another thing that YouTube has started doing is if they recognize if their software recognizes copyrighted music, they will not allow you to upload that video in the first place. I actually had a video where I was using a, an intro that I had hired out to somebody else and that somebody else used copyrighted music in the intro and I wasn’t even able to upload that video. So they’re getting much more savvy.
The video, the ability to tell what music is in the background and transfer royalty money comes from the same exact system by the way. It was Dea5maus and Calvin Harris. Those are the, those are some of the artists.
I would say that in these particular videos, I’m really surprised that this software system didn’t happen. That either it wasn’t blocked for uploading or the, the advertising money just changed hands in order to make it happy.
That didn’t happen.
Michelle:
But she’s also been in business for quite a while. So it could be that these were some of the older videos that were uploaded prior to that technology’s existence. But the point is she was using music that didn’t belong to her and she got caught and now she is being sued. One and a half million. Not going to be easy.
Anthony:
No, it’s not gonna be easy because if there’s no license and the music’s there, I mean, again, we go back to what is copyright infringement?
It’s the unauthorized copy, the unauthorized public performance, the unauthorized sale.
It’s something that’s just not authorized by the copyright holder. And in this particular case, if it’s not there, if that authorization is not, does not exist, then it’s copyright infringement.
Now, we can take a bigger, broader view and we can say in the bigger, broader view, we have examples of YouTube use creating sales. And in that particular instance, I think we can agree that Michelle Phan’s use of the music probably created fans and probably created sales. Sure. We have other examples. There was a time when, Monty Python was going after fans for putting up their skits even though the skits are 50 years old at this point, because that was the 60s. Sure.
Monty Python DVD sales went through the roof once they stopped doing that. So we have, we have some examples.
I know I have a third one sitting right here in my notes…
Oh, Disney! Disney and “Frozen” has not beaten up everybody who is doing covers of “Let it Go.”
Michelle:
I can understand that.
Anthony:
Yes. But they can. The point is Disney has kind of let this go as an example. This I can’t believe, can’t believe I did that. I cannot believe I just did that. But anyway, that was totally accidental. But what they have decided to do is not, not necessarily enforce every instance of it as a way to let that song continue to multiply and the idea thinking that every parody, every cover version out there, one, the, the Google Youtube software can handle any advertising monies that go back to them. And two, it helps drive sales of course. Now the beautiful, the beautiful thing about copyright law is that as an owner, you don’t necessarily have to enforce it. Although if you have to enforce it against somebody and you haven’t been enforcing it, there might be an issue down the road of damages because if it wasn’t worth anything to you before, what’s it worth to you now? So that might be an issue down the road. But ultimately letting the copyright multiply and have the parodies and have the appearances and other videos on youtube, that’s a choice by the copyright owner. The copyright owner still has the right to shut it down, of course.
Michelle:
So the important thing to keep in mind is really just to, to be careful and avoid these dangerous areas of you can because you and I are not part of Ikea’s marketing department or Coca-Cola’s marketing department and it is not up to us to decide to decide if what we are doing is helping them sell their product.
Anthony:
There’s a part of, of me that I know that a lot of people don’t necessarily like, which is being a lawyer. I’m conservative on these particular issues and there is a reason for that because I don’t like seeing my clients get sued.
Michelle:
It is much easier to not get sued than it is to defend a lawsuit.
Anthony:
I’ve had a fun debate with an attorney last year who I met and we were talking about video games and I asked, “What do you name a video game; how do you get it out there?” And, my colleague said, “You know what? First of all, our company, I’d tell them, name it whatever they want, see if they get caught and, and just throw it out there.”
I don’t particularly like that because when it comes to software, a lot of software companies are voracious in their appetites for enforcing their intellectual property. And I don’t think it’s good advice to tell a software company. Just to put it out there. I don’t think that’s good advice because I think that’s inviting an infringement lawsuit.
Michelle:
I agree completely. And honestly, a startup is the kind of company that has least able to defend themselves in a situation like that. You don’t want to put yourself where in a situation where the viability of your business could be called into question.
Anthony:
His, his argument to me was that because it’s a startup, they’re least likely to be found.
Michelle:
Okay.
That’s not necessarily,
Anthony:
And I agree with you. I do agree it’s not necessarily true because the company was also a startup. Yes, it was. Yes, it was. So what’s our, so what’s our final point on, on this episode?
Michelle:
The, the, the fifth way that bloggers get themselves sued is everybody’s favorite. Defamation, yes. Defamation, libel, slander, et cetera.
Anthony:
This particular legal theory when we’re dealing with bloggers, okay. And the reason is one, the truth in the United States, not in the United Kingdom, by the way, but in the US the truth is an absolute defense to defamation.
Michelle:
And
Anthony:
If there is a blogger who is giving his or her opinion about a product, that opinion is truth as the blogger sees it. However, a lot of companies are going after bloggers who write bad reviews of products. We’re finding that, um, not only is his defamation invoked, but by the way also trademark infringement and dilution aren’t poked as well for bad reviews.
In these particular instances, I think we’re finding that the bloggers are winning. But I’ll tell you it’s not a fun fight.
I just, I just don’t, I’m not sure exactly what else to say because to me, you’re not defaming a company if you say that a certain product fails to meet certain expectations. Defamation is purposefully saying something that is untrue, that hurts a company’s reputation or a person’s reputation. But in this particular case, we’re talking about businesses and, and a lot of businesses have acted poorly to negative reviews online. And I don’t like it. And, but since we’re talking about being conservative and since we’re talking about protecting yourself from a lawsuit, I would say to do two things, especially if you’re a blogger who’s putting out product reviews. One, have an attorney in your back pocket who handles these particular matters and make sure that the attorney just peaks. At the blog every once in awhile. It doesn’t have to be a thorough review, which is just have the attorney peak and just say, look, DSC something that off the top of your head sets off bells, alarms and whistles.
Make sense, and to try to be as eloquent as you can in your writing. I have found that blockers get themselves in trouble by holding themselves to a lower writing standard, and I would say if you’re eloquent in a review that’s going to be negative and you’re able to say, here’s what I liked, here’s what I didn’t like, here’s what I thought could be fixed. Here’s what I thought could have been better. Then it doesn’t feel like defamation, so make sure when you’re writing and writing a negative review that it doesn’t feel like definition defamation. Excuse me, and I think the blogger will come away with a better product as well as a lower chance of being sued. Now Look, everything we’ve talked about here is not 100% you could still get sued.
Michelle:
Well sure. Anybody can sue for any reason. This is just a matter of trying to decrease your exposures.
Anthony:
And in these particular instances, I think it’s important to take all of this as a whole in writing a blog avoiding the names of other companies; discussing a name when you can’t do it any other way. Making sure that pictures are licensed and making sure that the content of pictures is proper. Making sure that the music is licensed. If you need music, I need music, I need an intro and an outro. Did you do so at some point we’ll be getting the proper license for that and also making sure that when you’re doing a negative review, it doesn’t cross that line into defamation. Sure. But I would say with that negative review, make sure you write it as eloquently as possible because the idea here is for everyone to avoid that. And it’s not a a hundred percent, you’re not always going to avoid it. But I think in this part, I think these are helpful tips to make that blog better and to make your defenses better when somebody complains.
Michelle:
Agreed. Now going back to the, the negative reviews, just to clarify there, there were quite a few stories in the news not long ago about people being fined for negative reviews because they had signed up with services or with websites and it was in the terms of service that if they left a negative review review they could be fine. What we were just talking about as completely separate from that.
Anthony:
Absolutely. And I would say those stories stem from what you just said, signing up with a service that has terms of use, which of any piece of software is a contract that is legally enforceable. And if that terms of use says that you are not allowed to put up a negative review on any of our member products because you’re signing up for these member products one way or the other and your co and if you do put up a negative review, it’s fine, sure. It’s been enforced inherently. I understand that a lot of people don’t like that particular ruling, but you can contract and you can agree. And my advice there is read terms of use the terms of service of any service that that you sign up for. Because if it relates to them, having access to goods and having member products, then I think you’ll understand better.
How to deal with this particular service of course. And you need to avoid those pitfalls. But, but yeah, that comes from just not reading terms of use in terms of service, which let’s be honest, most people, the overwhelming majority of people aren’t reading terms of views. Exactly. And that’s a mistake in and of itself.
Michelle:
But anyway, to just to sum up the episode as a whole, it seems to me that really what you’re saying is that the Internet is no longer the wild, wild west. We don’t have the anonymity that we used to have.
Technology has progressed to the point where someone who’s in charge of IP for a large corporation like Coca-Cola can get Google alerts delivered to their inbox immediately every single time their brand is, as mentioned, Getty has an image search engine that will find their images.
Anthony:
Yeah. I’m not here to single out any one particular company or corporation because all big companies, all big companies have mechanisms in place to show when their trademarks come up on the Internet. I hope the many small businesses do as well.
Michelle:
You and I both know small businesses that have gotten sued over trademarks from near and far just because the Internet makes it easier.
Anthony:
Right.
A lot of small businesses also don’t care and they get sued because they don’t care. So my point is that there is software out there that makes it easy for trademarks to be found for a copyrighted material to be found and therefore they will be found if they’re online. And so the way that a blogger can protect him or herself is what I said earlier, make sure that, that the use is protected. Make sure, make sure that trademark uses is properly protected. Make sure the copyrights are either secured or licensed, and make sure that that content doesn’t step over the lines. Have an attorney review. Not doesn’t have to be every single time, but make sure there are periodic reviews so that you as the blogger can understand in what direction to take your blog and also to make sure that you’re just not stepping over the line.
Michelle:
Sure. That makes a lot of sense.
Anthony:
All right, Michelle, if people want to find you, how can they find you?
Michelle:
Very difficult to find. I can be hello@michelle-carter.com and that’s Michelle, with two Ls, the way it’s intended to be.
Anthony:
And I’m Anthony Verna, Managing Partner at Verna Law, P.C.
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