Social Media Issues In the Workplace: Intellectual Property, Trademarks, Trade Dress

Social media is not just a personal communication platform but also a critical business tool. From multinational corporations to local businesses, an entity’s presence on social media is indispensable for brand recognition, customer engagement and marketing. However, this digital boon brings with it a host of challenges, particularly in terms of intellectual property (IP) rights, which every employer and employee must navigate carefully.

Explore the multifaceted conjunction of social media and intellectual property within the workplace. We’ll cover the fundamental concepts of branding laws, such as trademarks and trade dress, and provide an insight into the vital role of social media policies. By understanding these elements, you can prevent legal missteps that could otherwise undermine your company’s reputation and financial stability.

Intellectual property rights foster innovation, creativity and fair competition. In essence, they are the legal rights that arise from intellectual activity that produces inventions, artwork, literature, designs and other important elements used in commerce.¹ These rights give creators and businesses the ability to control and profit from the use of their creations. Within the context of social media, this control becomes pivotal as content is easily disseminated and shared across the globe at a moment’s notice.

Social media platforms have become grounds for both intentional and inadvertent intellectual property infringement. A simple retweet, share or repost could involve the unauthorized use of copyrighted images, videos or music. These actions, while seemingly innocuous at the user level, can have profound implications for employers.

For example, let’s say you work for a fashion company and a photographer snaps a photo of a model wearing distinctive sweatpants your company makes. You share this photo on your company’s social media account, but because the photographer has licensed the photo for reproduction and you did not get permission to share it, he sues you. Your company then counter-sues, claiming he’s the infringer. This is a real case—Carlos Vila v. Deadly Doll—that played out in part because of social media.² The court ultimately ruled in the photographer Vila’s favor.³

IP infringements should not be taken lightly, as the fines can be substantial. Those committing copyright infringement may face federal statutory damages of up to $30,000 per work infringed. Fines escalate up to $150,000 per work if it is found to be a case of willful infringement.⁴

Companies must also be vigilant about how their own content is used or referenced on social media. IP rights like copyrights and patents protect original works and inventions, but the dynamic and interactive nature of social media can complicate the enforcement of these rights.⁵ As your employees become ambassadors of your brand online, every piece of content they produce or interact with on behalf of the company must be assessed for IP infringement risks.

Trademarks and trade dress serve as the visual and conceptual signatures of a brand, reassuring consumers of the origin and quality of the products or services they consume. A trademark is a recognizable sign, design or expression that distinguishes products or services from those of others.⁶ Trade dress, while related, takes this a step further, referring to the overall look and feel of a product, including features such as size, shape, color, texture and graphics.⁷

Social media has revolutionized the way these elements of brand identity are displayed and consumed. While platforms like X, Instagram and Facebook are critical for brand promotion, they also threaten the integrity of trademarks and trade dress. User-generated content, viral marketing campaigns and influencer partnerships can sometimes blur the lines of trademark boundaries and dilute or even tarnish a brand’s identity.

Instances of trademark infringement on social media can range from the use of a brand’s logo in a user’s post without permission to a competitor using a hashtag to divert traffic from the original brand. With trade dress, the risks can include another entity copying or mimicking a brand’s social media layout or style, creating customer confusion—a direct infringement on trade dress rights.

The implications are significant. When a trademark or trade dress is compromised on social media, not only can it lead to customer confusion, but it may also devalue the brand and diminish the legal protection afforded to the mark. The global and immediate nature of social media means that such infringements can swiftly spiral out of control, making it more challenging for companies to manage their brand reputation and enforce their legal rights.

This calls for robust monitoring of how your company’s trademarks and trade dress are used online. You should proactively register trademarks and assert your rights when infringement occurs while also being aware of your own actions on social media, to avoid infringing on others’ IP rights.⁸

Monitoring is the cornerstone of brand protection on social media. Your company must employ consistent vigilance in tracking the use of its IP rights across various platforms.⁵ This can be achieved through the use of social listening tools and services that scan for misuse of logos, taglines, brand names or any distinctive visual elements associated with the brand’s trade dress. When unauthorized use is detected, swift action needs to be taken to enforce your rights—this may include issuing takedown notices, filing complaints with social media platforms or even pursuing legal action if necessary.

Employees play a pivotal role in brand protection. As company representatives, they need to be educated about the significance of IP rights and trained on how to prevent unintentional infringements when creating or sharing content online. Understanding what constitutes fair use versus infringement will help employees navigate social media more responsibly, benefitting themselves and their employers.⁵

Taking a collaborative approach, brands can also work with social media platforms to protect their intellectual property. Many platforms have policies and reporting mechanisms designed to address the misuse of IP and to support rights holders. By establishing a direct relationship with these platforms, you can facilitate quicker resolutions to infringement issues.

A well-structured social media policy is a necessity rather than a luxury for modern workplaces. It provides a framework for understanding what is acceptable when employees interact with social media, both personally and professionally. An effective social media policy should address intellectual property concerns and help prevent misconduct that could result in legal issues for both the employee and the company.

When drafting social media policies, the focus should be on clarity and comprehensiveness. You should outline what is regarded as proprietary information and establish clear boundaries for its use. These policies should cover aspects like respecting copyright and trademark laws, guidelines for posting content related to the company and protocols for appropriate use of the company’s brand assets.

Key components of an effective social media policy include:^5,9

• Copyright and Trademark Compliance: Employees should receive specific instructions on the use of copyrighted materials and trademarks. This includes knowing when the company’s or a third party’s permissions are required for reposting content or using branded elements
• Confidentiality and Privacy: Provisions reminding employees of their obligation to protect confidential company information and the privacy of customer data even in informal social media interactions
• Brand Representation: Clear directives on who is authorized to speak on behalf of the company and how brand messaging should be handled
• Employee Conduct: Guidelines on acceptable behavior when engaging on social media platforms, both as an individual and a company representative
• Legal Consequences: An explanation of the potential legal ramifications of improper social media use, and how these actions can impact the employee and the company
• Training and Resources: Commitment from the company to provide ongoing education and resources to support compliance with the policy and to stay abreast of evolving legal standards

Social media policies should not only act as rulebooks but also as educational tools. Training sessions that address common scenarios and question-and-answer sessions can increase understanding and buy-in from employees, leading to more effective compliance. These sessions should also empower employers to positively engage with social media to enhance your company’s brand and reputation online.

The repercussions of mishandling intellectual property on social media platforms can be severe for both companies and employees. Intellectual property infringement can lead to lawsuits, financial losses and damages to a company’s reputation. For individuals, such missteps might result in disciplinary action or even termination of employment.

The most pressing legal concerns include copyright infringement, trademark dilution and unfair competition. When companies or individuals use copyrighted content without proper licenses or utilize trademarks in a way that confuses the public and dilutes brand identity, they are stepping into legally precarious territory. Litigation, fines and mandated content removal are just some of the potential consequences.

To mitigate these risks and navigate social media with legal prudence, here are some best practices companies and employees should follow:¹⁰

• Stay Educated: Regularly update knowledge on intellectual property laws and how they apply to social media. Laws and platform policies change, and staying informed is crucial
• Perform Due Diligence: Before sharing or creating content, conduct thorough checks to ensure all intellectual property is properly attributed and any necessary permissions are obtained
• Use Official Channels: Engage with verified social media accounts for sharing and creating content, as these have typically undergone more rigorous checks for IP compliance
• Leverage Content Creation Tools: Embrace tools and services that provide royalty-free or licensed material for corporate social media use, ensuring compliance while serving creative needs.
• Document and Archive: Keep records of licenses, permissions and conversations regarding the use of IP-related content
• Engage Legal Counsel: At a hint of potential infringement, consult with legal experts to navigate the complexities of IP law and social media policies
• Respond Promptly to Infringement: Whether your company’s IP is being infringed upon or if an infringement is unintentionally committed, responding swiftly and appropriately is vital to managing the situation

By adopting these best practices, you can foster a responsible social media culture that respects intellectual property laws and reduces the likelihood of costly legal challenges. It also positions your business as a credible and trustworthy entity in the eyes of customers, partners and competitors.

Social media’s pervasive role in the workplace demands a detailed understanding of the intersection between digital content sharing and intellectual property rights. By cultivating robust policies, providing effective education and employing proactive monitoring and enforcement strategies, organizations can turn potential pitfalls into platforms for growth and innovation. Take the lead in this area with confidence by earning an online Master of Jurisprudence in Labor & Employment Law (MJ-LEL) from Tulane University.

This program is an excellent way to build a strong legal foundation and grow your expertise and employment and labor laws become more complex. The online MJ-LEL curriculum is designed to address modern and forthcoming legal challenges. In the advanced course Social Media in the Workplace, you will explore the use of creative works within the workplace, particularly in the areas of social media and the internet, branding (trademark, trade dress, etc.) and advertising.

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