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Social Media Marketing and Copyright Law Part One: A Background on Copyright Law

January 21, 2010

Many businesses are using or contemplating the use of social networking Web sites (sometimes called “social media marketing”) as part of their strategic marketing programs. “Social networking Web sites” includes sites such as FacebookLinkedIn and the like. Wikipedia currently lists 174 major active social networking Web sites, excluding dating sites, so depending on the nature and location of one’s business, marketing opportunities are abound. As an example, Facebook has tens of millions of visitors each month, making it a difficult marketing channel to ignore.

While these sites can be powerful tools for promoting a company’s products and services, business owners should be mindful of the legal issues involved with such marketing efforts.

Copyright law protects original works of authorship (almost anything that is more original than a phone book or a simple business form). Works protected by copyright vary widely and include such things as architectural works, software, maps and statuary. For the purpose of this article, protected works of authorship that are most relevant are text, music, photographs and video.

Under the copyright law, the owner of the copyright in a work is in a very powerful position. The copyright owner has the exclusive right to copy, adapt, perform, display and distribute his/her/its work of authorship. These rights are often called the “bundle” of copyright rights. The exclusive bundle of rights can be divided up in a myriad of ways.

The rights can either be exercised by the owner or licensed by the owner to third parties for the use by those third parties. Those third parties may have the right to sub-license their rights. For example, the owner of a copyright can authorize a publisher to publish his book in English in the United States and Canada. He can authorize a different publisher to publish the book in French in Canada and a different publisher to publish the work in English in the United Kingdom. He can also grant a third party (for example, a movie producer) the right to adapt the book into a film that can be distributed worldwide. The movie producer may have the right to adapt the movie into a comic book for sale world wide. Keep in mind that the grant of all or a sliver of the bundle of rights by the copyright owner should always be (but often is not) in writing. Whatever rights are not specifically granted by the copyright owner will be retained by the copyright owner absent a great deal of legal wrangling that can be time consuming and quite expensive.

The final background concept relates to ownership of the copyright in a work. The ownership of the copyright is not related to physical ownership of a work (for example, the fact that I own a copy of the book The Da Vinci Code does not mean anything about my ownership of the copyright in the work unless I happen to be the book’s author, Dan Brown). The owner of the copyright in a work is usually the person who created the work although in the case of an employee whose job duties included creating the work, the owner is the employer. Businesses may also obtain ownership of certain types of works through what are known as “work-made-for-hire” agreements.

Another common way for businesses to obtain ownership of copyrighted works is through agreements in which a copyright owner assigns the copyright to the business (these assignment agreements are often combined with “work-made-for-hire” agreements for legal reasons that are too complicated to get into here).

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