Social Media Promotion: Dos and Don’ts with Content Posted by Others

In this third and final blog of our series on social media promotion we are looking at use of content posted by others, particularly in the context of “linking” and “framing.”

“Linking” is a well-known method of providing an Internet user with the ability to jump from one site or page to another via hyperlink.  The link may redirect the user to content posted by others with no connection to the host site.  “Framing” is similar to linking but the user views the third-party content in a window or “frame” on the host site.  This distinction may be significant because without redirection the user may be unaware that the framed content is being generated by a third party.

There are a number of legal issues that may be implicated by linking and framing, including contract, trademark and copyright law.  Many social media providers include terms of use that place restrictions on the use of content available through their service.  Linking or framing may violate those restrictions, which could lead to account deactivation and the like.  Deactivation can be a significant problem for commercial users who use those sites for promotion and customer interaction.

Trademark law issues can arise in connection with the use of content posted by others, including potential confusion arising from users’ inability to distinguish whether linked/framed content is being generated by the host site or the third-party site.  A user may also be misled into believing that the framed content provider endorses the host site (or vice versa).  Such questions were at the forefront of a case involving the Washington Post and five other news outlets who sued TotalNews for framing their news content.  The case ultimately settled, but only after TotalNews agreed to stop framing the news content on its site and use text-only links.

Copyright issues may also arise in the context of framing, for example: (i) the right to use protected material in the first instance; (ii) whether a use is considered “fair”; and (iii) whether the frame alters the content and appearance of the host site or the content being framed and whether such alteration is deemed “derivative” of the original.

Some courts have held that linking alone does not violate the Copyright Act when no actual copying of the copyrighted material is involved – just a link to it.  However, there are circumstances where infringement may exist. The most obvious example is where the target site contains infringing material and the owner of the host site has knowledge of or encourages the infringing activity.  In one of the seminal cases on this topic, the Ninth Circuit Court of Appeals created an affirmative obligation on search providers (in that case Google) to take action in cases of known infringement by third-party sites appearing in search results.  More recently, Getty Images brought a copyright infringement suit against Microsoft alleging unlawful use of its images through Microsoft’s Bing Image Widget.  The Widget collects images found on the Internet, including images owned by Getty, that may then be framed/embedded on a user’s site.  The Getty case should be watched carefully and may provide additional insight as to the propriety of such tools and framing generally.

Some social media providers, such as Twitter, include a provision in their terms of use that makes it a condition of having an account that the account holder permit other Twitter users to copy, modify, etc., the account holder’s tweets.  However, terms of use like this may not be adequate to prevent the commercial user from being sued for appropriating content posted to social media platforms.

As we have done throughout this series, below are some dos and don’ts that should help guide your decision to use linking or framing in your social media or other on-line activities:

• Do assess or obtain legal counsel to determine whether proposed linking or framing will violate the law.
• Do explore the possibility of linking/framing agreements for cross-marketing or other mutually beneficial arrangements to obtain the content you want, and carefully vet your potential partners to ensure they have the right to provide you with content.
• Do determine if a disclaimer near links/frames is necessary to alert the user that the linked/framed content is owned by a third party.
• Don’t use content posted by others to promote your business without assessing if you need permission from the owner of the content – which may not be the party that posted it.
• Do immediately remove any links/frames with known infringing content or content which you think might be infringing.
• Don’t assume that because third-party content comes from a “reputable” source that the third-party has vetted its own content for infringing activity.
• Don’t allow employees or other agents to create links or frames without addressing potential infringement issues.