Sunday, May 14, 2017

Author Beware.... and Emoji have Rights, Too

In the desperate scramble to promote ones own works, it is all too easy to trample other people's rights unawares. Beware of the rabbit holes and quicksands that pockmark the online copyright landscape.

One might assume that, if Google or Facebook sells one a "keyword" for advertising purposes, they must have all the necessary legal rights and licenses to sell those names and words? Not necessarily!

In "Facebook's Misappropriation Problem: Selling Artist Names As Advertising Keywords", Chris Castle writes about the possible violation of celebrities' rights, in the selling of famous persons' names as advertising "keywords".

Chris Castle focuses on Facebook. When someone considers litigation, one usually goes after the entity with the deepest pockets. The trouble with defendants with deep pockets (such as Google, Facebook, Amazon) is that they could probably make the process so expensive that the plaintiff's resources are exhausted.

In "Using The Name Or Likeness Of Another", the Digital Media law Project offers excellent guidance on using --or NOT using-- another person's name (or likeness) for commercial purposes (or advertising).

This should be required reading for any debut author who is considering buying Facebook advertising "keywords" to suggest that fans of this or that (named) established famous author might like to buy the debut author's book.

A newbie might be safe from a lawsuit if he suggests that he writes like Shakespeare on steroids. Possibly the worst that could happen would be reviews to the effect that this newbie "is no Shakespeare". However, it might be considered rude to use the name of an author who recently declined the opportunity to write a cover quote for the newbie.

And  Jack Greiner of Graydon.Law chimes in with commentary "Could Key Words Mean Trouble For Facebook?"

The trouble is less one of trademark infringement, but more of "right of publicity"... the right to NOT have one's name used to sell other people's stuff without one's consent and without payment.

Perhaps, it would be wise and polite to obtain written permission from the owner of the name one wishes to use to promote one's book, or to reach their audience when a member of their audience searches for something related to the established author's books, and your stuff pops up.

It's not just the names and likenesses of real people that you disrespect at your peril. You have to watch what you are doing with other peoole's emoji, too. Even ones that are "free".

As Kimberly Culp and Juan Aragon explain (for Venable LLP), explain in "Copyright Considerations for using Emoji in Commercial Ads:

EmojiOne, for example, provides a free license for commercial use with attribution. EmojiOne requires that commercial users provide a link to their website: such as, “Icons provided free by EmojiOne.” For websites, the link must be somewhere on the website, but does not require a link on the specific page. For printed ads, the attribution information must be in small text at the bottom of the ad. If attribution is an issue for an advertiser, EmojiOne offers custom licenses, which requires contacting the company directly.

This author has no idea whether or not Facebook sells emoji as "keywords", or whether any author would wish to use emoji in a book advertisement.

For newcomers to copyright concerns, the law firm of Kegler Brown Hill and Ritter, Jasmine J. Hurley blogs about the 5 basics of copyright

BTW, Happy Mothers' Day!

All the best,
Rowena Cherry

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