Brand companies have come to view user-generated content as often one of the most effective and authentic ways to advertise their products or services. This is known as “user-generated content marketing.” For example, with the ubiquitous selfie, brand companies have discovered a rich supply of user-generated content. Consider a consumer who takes a selfie wearing a favorite pair of jeans, posts the photo on Instagram, and then tags the photo with #brandname. The jean company sees and likes the photo, re-posting it on the company website. Legal issues? If the consumer or user was hoping to get attention from the brand for the photo and opinions shared online, not at all. This is how many digital influencers get their start. But if the user was not seeking such attention? Then, problems can arise.
Continuing the trend in recent years of injunctions becoming harder and harder to obtain, the Northern District of California denied a motion for a preliminary injunction where the defendant has allegedly copied the plaintiff’s video game source code. Despite finding a strong likelihood of success on the merits, the judge rejected the plaintiff’s bid for a preliminary injunction because there was insufficient evidence of irreparable harm to the plaintiff, and because the balance of equities tilted in the defendant’s favor.
In 2007, Stephanie Lenz posted a 29-second video to YouTube of her baby dancing in the kitchen with Prince’s “Let’s Go Crazy” playing in the background. Claiming use of their song amounted to copyright infringement, Universal Music Corp. (Universal) sent YouTube a takedown notice under the Digital Millennium Copyright Act (DMCA). Lenz, with representation provided by the Electronic Frontier Foundation (EFF), sued Universal on the premise that Universal had abused the DMCA takedown provisions by violating Section 512(f), which bars misrepresentations of unauthorized use. According to Lenz, before sending its notice, they failed to take into account the possibility that Lenz’s video was shielded by the fair use doctrine. Last week, in Lenz v. Universal, a.k.a. the “dancing baby case,” the Ninth Circuit sided with Lenz in a ruling that will impose new burdens on copyright holders policing hosted content.
As social media platforms continue to find new ways to allow users to share, post, and forward nonoriginal content and users become more engaged in the practice, the platforms hosting the content and disgruntled original content owners are bound to clash. In the past, Google, YouTube and others have been targeted for allowing users to post copyright-protected material, and ordered to remove the objected to material. A recent case filed in the Central District of California involves similar allegations against social media powerhouse Twitter. In Pierson v. Twitter, Inc., the plaintiff alleges that users tweeted her copyrighted image and that Twitter failed to remove the infringing material.