The U.S. District Court for the Southern District of New York adressed the issue of whether or not third parties are granted a license to reuse content after it has been posted to Twitter. In Agence France-Presse v. Morel (S.D.N.Y., No. 1:10-cv-02730-AJN-MHD, 1/13/13), Morel, a photojournalist, had posted photos he took of the aftermath of the 2010 Haitian earthquake on Twitter. Agence France-Presse republished those photos without consent from Morel. The court rejected the argument by Agence France-Presse that Twitter’s terms and conditions of service created a license for the use of content for which all third parties are beneficiaries. The court held that a third party can only benefit from a contract if the terms of the contract “clearly manifest” such intent.

Twitter’s terms and conditions state:

Peter Brody and Mariel Goetz have published a great article in Bloomberg BNA about the Ten Things You Need to Know About Social Media and Intellectual Property in 2013. They list the 10 things as:
1.Be on the lookout for the next Pinterest.
2.Determine the level of social media interactivity that works best for you and your business.
3.Determine an appropriate policy regarding ownership of user generated content.
4.Proactively address ownership and use of business-related social media accounts by employees.

All seems to be quiet on the Instagram front now. Does anyone remember what happened just two weeks ago? Have Instagram users changed their accounts back to the public setting? Did you delete your Instagram account?

Instagram may be holding strong, despite it’s misstep earlier this month. If so, Instagram may be the story of 2012. Check out the Instagram 2012 Timeline (courtesy of Lisa Kalner Williams’ article in Social Media Today):

Instagram’s bad luck continues this week: The first class action lawsuit has been filed as a result of Instagram’s attempt to change their terms of service (“TOS”), their fake “apology” and then their partial retraction of the new TOS. The TOS that are going into effect on January 19, 2013, removes the language that states that Instagram could display user content without compensation. However, users have now had the chance to digest the fact that removing that piece of the TOS does not solve the problem. Instagram still has the right to display user content (photos, user IDs, etc) and that Instagram “may not always identify paid services, sponsored content, or commercial communications as such.”

It was a tough week for Instagram last week. Let’s take a look back:

On Monday, December 17th, Instagram posted on their blog that Instagram would be changing their terms of service as of January 16th, 2013. The new terms of service provided that each user accepts the new TOS by accessing Instagram and, once accessed, a user has no way to opt out of the new TOS. Under the Rights section, the user agreed:
• 1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here http://instagram.com/legal/privacy/, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.
• 2. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
• 3. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
•[Emphasis added.]

The above emphasis language caused a public backlash that Instagram didn’t expect and wasn’t ready to handle. Users. including many high profile celebrities and politicians, immediately spoke out against the changes and deleted their accounts. The idea that Instagram was planning to, or at least reserving the right to, take users photos, user names and post them as endorsing different commercial products was not acceptable to the millions of Instagram users who had created communities on the photo sharing service and those users decided not to stay quiet.

As the use of social media by companies has become main stream, it is important to provide guidance to clients on the legal risks that accompany the use of social media to promote their businesses. The legal risks can be broadly grouped into the following categories:

1. Employment: As discussed previously on this blog previously,employers need to be careful when investigating potential and existing employees through social media. The potential to discoverprotected information about an employee is very high and should not be risked. In addition, the National Relations Board (NLRB) has recently released an advisory memo that states an employees posts on social media are protected if the posts discuss wages, hours, and working conditions with co-corkers and others. Employers need to be very careful to remain up to date on the current state of employment law as it relates to social media.

2. Contractual Issues: Using sites such as Pinterest, Facebook, Twitter, LinkedIn and others all require a user to accept their terms and conditions to have an account. If your company is advertising on these sites, make sure that the terms and conditions that you agree to for advertising are in line with the terms your company can live with; otherwise you may run afoul of the requirements of the social media site and end up with your entire account being removed. In addition, if you have an employee running your social media campaign for you, make sure that employee is well versed in both the requirements of the FTC for your company and the terms and conditions of the social media site the employee is using.

Pinterest is a social media site that allows users to create and manage collections of images surrounding their interests and hobbies. It is like a virtual bulletin board or scrapbook, where you “pin” images for inspiration and sharing. Many users are unaware that these shared images are protected by copyright law. Pinterest boards can be shared with followers and fellow pinners; pinned content can be “repinned” or commented upon. The popular site launched in beta in March 2010 and reached it’s one millionth unique visitor by July 2011. In 2012, Pinterest increased its site traffic by 52 percent between January and February alone.

Cold Brew Labs, the owner of Pinterest, came under fire earlier this year after its terms and conditions were exposed and discussed across the internet as inflammatory and contrary to copyright law. In an unusual step, Cold Brew Labs listened to the criticism and released new terms and conditions that go into effect on April 6, 2012.

Do these new terms and conditions address and fix the problems? This article compares the original and new versions.

After several weeks of negative press over copyright, liability issues and negative images, it seems as though Cold Brew Labs, the owner of Pinterest, has bent to the pressure around the internet and in the press and announced a change to their terms and conditions. An email went out to all Pinterest account owners on March 24th as follows: