Can I Use A Public Domain Picture Of A Celebrity On My Website?

Celebrity Endorsing A lot of people on the internet are starting to become familiar with copyright laws.

They know, for example, that you are not supposed to save and use a picture from someone else’s website.

Sure, theft of images online is pretty rampant. But honest business owners avoid copyright claims by writing their own web copy and blogs, and buying licenses from stock phone companies.

Or they use images listed on Google or the public commons wiki with permissive use licenses.

Using images with commons license can save you a little bit of money. But you want to make sure you read the license grant and know what you are allowed to do with the image. Sometimes they exclude commercial uses (and if you are in business, you are a commercial use).

Copyrights, though, are not the only issues that arise when you put pictures on your website (or any digital or print products).

Advertising laws, for example, can be triggered. Does your image imply a promise of something that is not true?

People in the health, nutrition, financial and self-improvement areas are prone to fall into that trap. For example, if you are selling a vitamin and imply that someone will lose a ton of weight by a picture you include, without a claim being substantiated, you may find the FTC knocking on your door.

Same story if you are implying from a photo that people will make certain incomes from your product or service. Don’t promise incomes or cures for cancer, even by implication!

Just ask Kevin Trudeau. He’s in a Federal prison now….

If you use a celebrity’s image, they also have a property right in their “celebrity,” which they sell when they endorse a product. Using their image in a commercial setting, even with a disclaimer, could get you sued for big, big bucks.

Sometimes it is fair to use a public celebrity image, though. Do you know how to tell the difference between fair use and stealing their rights to their publicity?

Watch our video if you want to learn more about when a celebrity image is permissible and when it raises red flags.

Video Transcription:

Say you found a public domain picture of a celebrity on Google Images. Can you put their picture on your website?

If you are a news website and using their picture to discuss something newsworthy about them, then sure.

If you are a parody website and using their picture as part of a parody, then go ahead.

But if you are selling a product or service of any kind and thought their picture would help sell it, then no way.

You cannot imply in any way that a celebrity approves, uses or endorses your product without their express permission.

A disclaimer will not be enough.

This would qualify as false advertising and violates advertising laws. Plus you would be risking a lawsuit from the celebrity.

Having a license to their image may avoid a copyright suit, but it will not avoid these other problems.

Do you know where your legal land mines are? To find out, call us for a Business Risk Review at 800-449-8992 or email us at [email protected].

Failing to Police Your Trademark Online: A Cautionary Tale

Police line do not cross

Trademark holders have to police their trademarks to keep them.

In mid-2015, the Academy of Motion Picture Arts and Sciences (AMPAS) brought to trial a lawsuit against GoDaddy.com to stopped its “parked pages” program. I blogged previously about this lawsuit and what it means for business owners.

Before this lawsuit, there was no legal findings about whether or not parked pages were even legal. The verdict in GoDaddy’s favor changes that and has important implications for trademark holders nationwide.

The GoDaddy verdict is a stark reminder to all trademark holders that not diligently policing your mark online could cost you thousands. Worse, if you fail to police your mark, you may lose your rights to protect it altogether.

Parked pages usually occur when valuable domains are bought and then “parked” with ads to obtain revenue while the domain waits to be sold. This is abused by cybersquatters who buy domains with names similar to the trademarked names of a business before the business can buy it.

For example, as of this writing, coke.co is a parked page whereas coke.com goes to coca-cola’s website. The individuals who do run these pages create them on the hopes that web surfers will accidentally go to one of these pages and click on an advertisement. Or, they hope that the trademark holder will buy the domain name for a handsome mark-up.

When a page is parked, the domain registar and host (a company like GoDaddy) gets a portion of the advertisement revenue.

In its lawsuit, AMPAS argued that there were 56 Oscar-related domain names at issue. These domain names include the domains 2011Oscars.com, Oscar4re.com and Oscarcam.com. AMPAS also estimated that GoDaddy.com generated revenues of at least 8 million dollars from internet goers clicking on advertising links associated with these domains.

It is important to note that AMPAS did not contend that GoDaddy owned any of the domains mentioned in its lawsuit. Instead, AMPAS argued that the trademark violators were aided and abetted by GoDaddy who profited from the parked pages. AMPAS complained that GoDaddy allowed infringers to purchase the domain names and failed to police the sites to ensure legal compliance.

The judge didn’t agree. He decided that there was not enough evidence that GoDaddy intended to traffic in trademark violations in its parked pages. In other words, the judge decided that GoDaddy did not deliberately violate AMPAS’s trademarks.

GoDaddy really scored big when the court went a step further. The judge said that GoDaddy also provided enough evidence to prove that the domain was use fairly or otherwise lawfully, which is a defense to trademark claims.

GoDaddy proved this by showing that each time AMPAS sent a complaint to GoDaddy, it took the parked page down, usually within hours.

Domain purchasers also swear to legal compliance with trademark laws as part of their purchase of a GoDaddy automated domain registration. So the court decided that the blame lays on the trademark infringers, and not on GoDaddy.

The court said that all trademark holders must diligently police their own trademarks.

“[AMPAS] confuses GoDaddy’s technical capacity to filter for trademarks with AMPAS’s legal duty to police its own trademarks. At its core, AMPAS’s [] claim would impose upon GoDaddy (and presumably any other company offering parking, hosting, or other basic internet services) the unprecedented duty to act as the internet’s trademark police. The [law] did not impose such sweeping obligations.”

This lawsuit has an important lesson for trademark holders. Trademark holders who believer that their trademarks are being infringed have limited options. They may complain to the domain holder. They may register the page with an organization that seeks to block parked pages. They may try to purchase all domain names that are similar to their trademark before cybersquatters do. Or, they can try suing the domain owner for trademark violations.

The most important lesson is that the trademark holder has the responsibility to monitor their trademark at all times. Not ensuring that others are misusing your mark can cost you millions! It is a daily requirement of any trademark holder. Failure to do so may cost you rights to your own trademark.

How do you police and protect your trademarks?

  • Monitor the internet for use of your trademark or similar words and domains
  • Monitor press sources
  • Monitor public records for infringing filings in any of the state or local governments (not just the USPTO)
  • Monitor domain registrars
  • Monitor search traffic patterns for your domain and similar words, phrases or domains
  • Send cease and desist letters to any potential infringers, and follow up with legal action

If you want to learn more about trademarks, attend one of our webinars for entrepreneurs. Sign up for our next webinar at http://trademarkswebinar.com.

Are Unregistered Domains A Violation of Trademarks?

Young lady laying on the floor using a black laptopThis could be the end of GoDaddy.

Five years ago, the Academy of Motion Picture Arts and Sciences (AMPAS) filed suit against GoDaddy.com.

GoDaddy allows customers to buy domains and “park” them.  Parking them means that the domain points to a web page that has advertisements on them from Google.

When clicked, the owner of the web page gets a portion of that ad revenue. When the page is parked using GoDaddy, both the owner of the page and GoDaddy split the ad revenue.

AMPAS owns The Oscars. It’s website is registered to the domain oscars.com. But someone else registered “theoscars.com” and was holding it ransom. This is sometimes called cyber-squatting; but it is legal in most cases.

Usually, in this situation, someone in AMPAS’s shoes would pay tens of thousands of dollars to recover “theoscars.com” from the registered owner. Or, they would ignore it.

Unfortunately for AMPAS, they are suffering from 56 Oscar-related parked domains. These domains include 2011Oscars.com, Oscar4re.com and Oscarcam.com.

So AMPAS sued GoDaddy. AMPAS claimed that GoDaddy pocketed roughly $90 million in revenue just from their parked pages directed at The Oscars alone. To put this in perspective, GoDaddy annually generates a revenue over $1 billion dollars. If AMPAS wins, that would be nearly 10% of GoDaddy’s annual revenue in damages. That’s a lot of ad clicks.

While this case may seem like it is the fighting of giants and unrelated to the rest of us, that is not so. The ruling could seriously impact millions of business owners. Here’s how:

  • You may now have recourse if you found out that someone was using a domain name that is similar to your trademarked name. Should you sue?
  • GoDaddy’s business would take a crippling hit, possibly scuppering it and the millions of websites it serves. At the very least, expect prices to go up.
  • GoDaddy and other domain registrars may become forced to police trademark violations by registrants, which means more work for all of us.
  • If you own trademarks, you may be required to put in claims on domains in order to keep your marks protected (and not considered “abandoned”).
  • The cyber-squatting industry may die. But more likely, it will continue overseas, outside the jurisdiction of the United States. This will make American companies like GoDaddy suffer, as it will put them at a competitive disadvantage.

Domain hijacking is a common problem that most business owners deal with. If you’ve registered a domain recently, you probably noticed spam that came a few days later trying to sell you similar domain names.

For example, our CEO is publishing a book on election law for third parties titled Just Pursuits. We put up a sales page at JustPursuits.com. About a week later, we were hit with a demand to pay thousands of dollars for “justpursuit.com” (the s is dropped off the end).

In more serious cases, someone will put up a malicious page to try and force you to buy the domain. This happens to celebrities and politicians a lot. For example, Carly Fiorina (former CEO of Hewlett Packard who is running for President) got this gem: CarlyFiorina.org. (Not only are different spellings a problems, the top-level domain suffix like .com, .net, and .org can create problems.)

By the way, only non-profits are supposed to register .org domains. But this is not policed, really.

Ms. Fiorina’s .org spoof page isn’t too bad. There are worse ones depicting pornography, foul language, or other scurrilous materials.

If you haven’t experienced this, try typing in your domain name with minor changes and see what comes up. Are there other sites out there with similar names to your own? If there are, this case means a great deal for you.


 

Given the impact this case will have on how it does business, GoDaddy has gone through trial in this case. A verdict is still pending.

GoDaddy has not played nice during the lawsuit, either. For example, GoDaddy accused AMPAS of rigging the court system to have U.S. District Judge Audrey Collins, whose daughter is a professional actress, oversee all of the GoDaddy cases. The Honorable Collins has made some decisions that were unfavorable to GoDaddy. GoDaddy got “bench slapped” for that one, but ultimately achieved a new judge assignment.

But both sides know what is at stake. AMPAS says that it seeks to establish cybersquatting as a “serious problem that should not be tolerated even if it is being perpetrated by a company that generates over a billion dollars in revenue….

For its part, GoDaddy says that the guns are aimed at the wrong target. “GoDaddy is not a cybersquatter. It is not a pirate,” its attorney said in opening statements at trial. And GoDaddy also tried to help AMPAS. Within three days after receiving AMPAS’s complaint about parked pages, GoDaddy redirected 37 domain names to no-ads templates. Given the current state of domain registration governance (something controlled by an international body), this may have been the best that GoDaddy could do for AMPAS.


 

While we await the verdict on this matter, it important to realize that it may have serious implications for us all. Currently, there is no solid law on what to do about cyber-squatters and parked pages. The legal system has simply not caught up with this issue.

There are dozens of conflicting interests at stake when it comes to domains and cybersquatting. This is an issue that impacts small and big business and even international relations.

Companies who feel their trademarks rights are being violated by parked domains have limited options, such as complaining to the domain holder, registering their page with an organization seeking to block parked pages or attempting to purchase all similar domain names so no one else may register them. Many businesses may find themselves playing a frustrating game of whack-a-mole.

We will update you with the verdict and its implications after it is reached and as the law on this evolves.

When Announcing an Award or Media Appearance Results In A Trademark Violation

we're in the news newspaperHave you ever received an award for your business or landed a great media mention? When that happens, a smart publicity strategy is to announce the award or media and put an “As Seen On” claim on your website.

But not so fast! Before you start pasting other company’s logos on your website, you better be sure that it isn’t a trademark or copyright violation. In other words, you need permission (a license) to do it.

Yes, a lot of people put these types of badges on their website. All that means is that a lot of people are potentially stealing copyrighted and trademarked images out of ignorance. The attitude that “everyone else is doing it” is a sure-fire way of getting yourself into hot water by stealing intellectual property unintentionally.

That being said, there are many times you can include another company’s logo or copyrighted work on your website, ads, or emails. Getting permission is oftentimes free and requires just a little bit of effort.

With smaller companies, the easiest way to get permission is to just ask. Some will ask you to purchase a license. Some will just say, “OK” and that will be it. Some will direct you to rules and digital downloads they have for their “assets.” Some companies have specific rules on how their assets are used and presented, and you should respect that. Their permission for your use depends on you sticking to their parameters.

Certain companies (and media in particular) will put their logos out for public use on a creative commons license, or on a restricted, royalty-free license for commercial use. So, for example, NBC’s logo is available by a creative commons license (meaning that it can be used broadly and it is registered with non-profits to make their rules easy to figure out).

Similarly, Facebook allows (and in fact encourages) you to use their logo, even for commercial purposes, under a very broad, royalty-free license. Facebook wants you to link people to your profiles using their badge so that you will drive people to their website.

Not only do big companies offer Creative Commons licenses for their works and logos, authors and the government may do this as well. You can sometimes even modify and expand upon the licensed work, depending on the permissions granted.

Two places you can check for Creative Commons licenses include Wikimedia.org and CreativeCommons.org. Both websites are private non-profits set up for this very purpose, and can be considered reputable.

Next, to some degree, use of images for parody (even in a commercial video) is considered protected free speech. Similarly, images and quoted or excerpted media for newsworthy sites may be protected “fair use” under the First Amendment. This can be a complicated area of law, so be sure to check with your lawyer if you are a media or entertainment site. All other businesses should generally just try to stay away from anything that is not expressly licensed.

Finally, you should have instructions somewhere in your Terms of Service for people to contact you with “take down” requests. This gives you a safe harbor time period to deal with any disputes before the claiming party can file a lawsuit.

If you ever have a question about a particular image, you should ask a lawyer. It’s better to be safe than sorry. We offer our clients entry into our Peace of Mind Plan — for a small, monthly fee, they can call us with all their legal questions and get the help they need.

Are you at risk for CAN-SPAM fines?

spamE-mail marketing, such as newsletters and promotions to customer lists, is highly effective. That is why most companies engage in some type of e-mail marketing.

Yet, many companies are unfamiliar with the laws that regulate e-mail marketing, such as the CAN SPAM Act. Companies jeopardize their livelihood with every e-mail sent that is not in compliance with CAN SPAM.

I recently received an e-mail from a company’s blog that I used to follow. It told me about a new, featured post, and invited me to visit the blog.

Some time ago, though, I stopped reading this blog. So I wanted to unsubscribe. But when I scrolled to the bottom of the email, there was no unsubscribe feature. Annoyed, I emailed the sender and requested removal instead. I hope they follow my request and are not offended by it.

Failing to include an unsubscribe feature in a commercial e-mail does more than frustrate your recipients, though. It can cost the sender up to $16,000 in fines per e-mail sent.

Yes, you read that right. Violations of the CAN SPAM Act can cost up to $16,000 per violation.

So what do you need to know to comply? Here are the eight most important things you need to know about CAN SPAM Act requirements:

1.  It Applies to All Commercial E-mail: Most people think of spam as “cold” emails. Cold emails (those sent without the express consent of the recipient) are not illegal. But they must comply with CAN SPAM. Perhaps more surprising, though, is that all commercial emails — even those people opt into — must comply with CAN SPAM. A Commercial E-mail is one that advertises or promotes a product or service, or content on a business website.

2.  Header Information Must Not Be Misleading: This includes the “From,” “To,” “Reply-To,” and routing information located in the e-mail. All of the information must be accurate and identify the business sending the message. Do not mask your header information to improve open rates.

3.  Subject Lines Must Not Be Misleading: Do not try to create catchy subject lines if they will misrepresent the contents of the e-mail.

4. Identify the Message as an Advertisement: Although you can choose where to put this in the message, you must identify it “clearly and conspicuously” as an advertisement.

5.  Provide a Valid Physical Post Address: E-mail marketing materials must contain a valid physical address for the sender. You can use a P.O. Box in the United States.

6.  Provide An Obvious Opt Out Option: This is perhaps the most important feature of the CAN SPAM Act and has several particular requirements:

* Opt-out must be free.

* Opt-out procedure cannot require the recipient to provide any information other than the e-mail address they want to unsubscribe.

* Opt-out procedures cannot require the recipient to do more than send a reply e-mail opting-out, or visit a single webpage on and internet site

7.  Promptly Remove the Requesting Person From Your List: You only have 10 business days to comply with an opt-out request.

8.  You Are Responsible for Your Marketing Company’s Compliance: You cannot contract out of your responsibility to comply with the CAN SPAM Act. Vet your marketing companies for compliance before hiring. Regardless of who send the e-mail on your behalf, the company requesting the marketing is ultimately responsible for the results.

Failing to comply with the CAN SPAM Act can financially cripple your business. Just ask Kobeni Inc., which had to pay $350,000 to the FTC when it sent emails prior to rolling out the Affordable Care Act (ACA) exchanges.

Even if the FTC never sues you, failing to comply with marketing laws like the CAN SPAM Act costs you real money. It makes you look unprofessional and frustrates customers and prospects. (Just because someone unsubscribes from your email list does not mean they are uninterested in doing business with you.)

Complying with CAN SPAM Act isn’t just a legal requirement, it’s good business.

How to Talk to a Reporter

woman with mega phoneWe’ve all heard the saying, all press is good press.

That’s probably true if you are a celebrity. But if you are a small business, consultant or professional, media can be either a blessing for your business getting you tons of exposure and new customers… or a terrible, bad Yelp-review spawning curse that lives forever on YouTube.

I’ve had more than one client call me after getting surprised with a “consumer reports” type news piece that harmed their online reputation.

I learned through “trial by fire” to deal with the press in 2012 when I defended multiple lawsuits against the Libertarian Party’s Presidential candidate. During that time, I learned how to do press releases and was interviewed by reporters. Now, I’m a regular on a San Diego political radio show called The Andrea Kaye Show on AM 1170.

Politics and press go together like peanut butter and jelly. Business is also a popular topic for the press.

If you get an opportunity to speak with the press, you should grab it. (But never speak to the press about lawsuits or criminal charges involving you!)

Here is a strategy to make talking to reporters effective PR for your business or career.

Step 1: Frame the Story

There’s a saying that you should take to heart. “If you are explaining, you’re losing.” In other words, if you get pounced on by a reporter who is placing you on the defensive, the story is not going well for you.

What you want is to shape the story. Reporters need something interesting that will engage their readers on a gut (i.e. emotional) level. This is called a “news hook.”

Make it easy for the reporter to share your words and see your point of view. The easiest way to do that is to create a “bad guy” who is not you. This doesn’t need to be another person or business.

Here are some appealing “bad guys”:

  • The government (local, state, federal)
  • Taxes
  • Regulations
  • Politicians
  • Foreign competition
  • Big business

Step 2: Highlight the things you are trying to do to help people but are prevented from doing because the “bad guy” is in the way.

Step 3: State that you are willing to dialogue or compromise with the “bad guy” because you are a nice, reasonable person. This will give you credibility. Even though you have pointed to someone or something else as the villain in your story, you won’t be a hero if you aren’t nice.

Step 4: State the public benefits of your position.

You need a message for why your position is the just position — and not just for you but for the reader, too. For example:

  • “I just want to save the people of XYZ town as much money as possible on their lawn care but the new tax on landscapers is preventing me from doing that.”
  • “My goal is to offer everyone the opportunity to have affordable lawn care but the City legislature won’t let me because of this new tax.”
  • “This tax will kill the beautiful landscaping that has been the hallmark of our city. It just makes me sad our children won’t be able to benefit from this tradition.”

Repetition is your friend. If you hit the same message 7 or 8 times in a 10-minute interview, the reporter cannot ignore it.

Bonus Advice: remember that nothing is “off the record.”

Even when the interview is friendly, presenting a story in this way makes it much more likely that you will be quoted extensively and presented favorably.