I’m going on the record by saying that great marketers sometimes make big mistakes. And it’s very annoying−annoying enough to write this. And if you haven’t realized by the end of this post, I must of been a copyright/trademark lawyer in a former life.
I’m blown away with the entrepreneurial energy of Chattanooga. So when I see mistakes in their efforts, I just want to wave my hands and say, “whoa!” Without outing anyone in particular, here’s a BIG legal faux pas I’ve run into lately that I see routinely through my ‘Internets’ travels.
Through our personal interaction on the social web, we’re all guilty of sharing visual memes and funny quips about celebrities. And in most cases for personal entertainment, it’s OK. But when it comes to your business, it could be a great legal liability. This also includes protected characters from mega franchises like Star Wars, or images that are meant to go viral like the Grumpy Cat meme−also trademarks, copyrighted images and music. OK, so this should somewhat makes sense, right? Yet companies still abuse using celebrities and registered trademarks in their social media marketing efforts. Using a likeness without permission is legally referred to as, right of publicity.
Earlier in February, I ran into a local Chattanooga start-up who posted an image of a rugged and well-known actor with a contrived quote about their product on their Facebook page. They’ve posted him previously trying to rally support as a spokesperson for their brand. And although their brand seemingly fits with the actor’s on-screen persona, the photo can be confused with a direct endorsement from the actor. Celebrities have a habit of wanting to pick and choose product endorsements, and get paid for them.
Asking the question if a person would be a right fit to represent their brand, or soliciting opinions seems borderline allowable. A social media manager asking who would be a good fit seems more permissible and responsible. Either way, posting a copyrighted photo is not. And continued use of their likeness is definitely not. So, as tempting as it may seem, you’re placing business in jeopardy if the wrong person should happen by. Many celebrities have people to manage their online reputation, and there are folks who spend their all day looking for such infringements. Also note that Facebook takes copyright infringement pretty seriously. Most reported images are removed within a day–I recently ran into some photos I took on a page that I did not give permission to use, and they were removed promptly. The act of Facebook removing an image or post may not be the end of the legal ramifications if damages can be assessed. This start-up also has posted content related to movies, and have shared advertising slogans by other companies that they’ve tweaked to promote their products. Again, it’s a dangerous strategy . I also have to mention that they post a lot of original content and images, which is why you hate to see good marketing go astray for few extra likes.
I also ran into a local North Georgia restaurant who had been Photoshopping popular memes and celebrity photos to promote their events, so I’m not picking on an individual company and their seemingly unintentional lapse in judgement. It is, however, a great example. And not necessarily the type of activity from an inexperienced marketer.
I get it. People let the strong sharing culture of the Internet and social media get the best of them. Which can cloud the line of selecting appropriate content and collateral for their business. The majority of small and large companies know not to use a celebrity imaging in traditional adverting, like brochures and billboards. But to right-mouse-click and save and image to your hard drive and add some text is just too simple. And after all, it’s only the Internet.
The important thing is to keep your social media content fresh and original. Don’t chance using photography found in a Google search or another page. If you cannot take a picture or video, stock photography can be very reasonable priced. Use your own ideas and creativity to evoke content that creates conversation and enforces your brand–not others.
An email popped into my inbox this morning that provided me a great example for this post on how good marketers lose their good judgement. AppSumo.com ran a Valentine’s Day gimmick where you could share your favorite business mogul’s likeness on Facebook and Twitter. AppSumo offers daily deals to entrepreneurs, so this fits with their brand. But it also borrows the hard-earned reputation of sixteen well-known business personalities and their brands, without consent or compensation. And although there is no direct push or strong call-to-action to sell AppSumo’s products, it’s on the AppSumo.com domain, and is “presented by AppSumo,” using the AppSumo logo.
About the time I noticed a few visitors to this page from Austin, TX, I received another email with the title, You+ Me… from AppSumo. It contained a link to more high-profile entrepreneurs, and Treehouse CEO Ryan Carson, whose company happens to be the sponsor of the deal. A+ for creativity guys, but I only hope you don’t get in trouble. Most states have right of publicity laws protecting the likenesses without consent when tied to a commercial gain.
Here’s a good read in reference to the right of publicity violations mentioned in this article: