Puffery And Prevention

Puffery is like a fig leaf for writers. A vague or highly subjective assertion does not expose you, legally. Whether or not it is good writing is another matter entirely.

Here's an example of non-actionable puffery. "Alien Romances is the most interesting, reader-friendly, quick-read blog that has been active for more than 10 years."

The Frankfurt Kurnitz Klein + Selz PC advertising law blog article, 'Does "Tested" Actually Mean That You've Conducted Testing?' discusses a recent legal dispute over truth in advertising plumbing equipment.

https://advertisinglaw.fkks.com/post/102h5bl/does-tested-actually-mean-that-youve-conducted-testing

Legal blogger Jeff Greenbaum expertly runs through three separate claims that a rival purveyor of plumbing supplies found offensive, and why --on appeal-- two of the claims did not stick (legally speaking), but one did.

For UK law firm Burges Salmon LLP, legal expert Helen Scott-Lawler and Amanda Leiu examine two stories of social media influences who fell foul of the law (the Advertising Standards Authority), one for allegedly using her Instagram presence to promote products for profit without --allegedly-- properly disclosing that her posts were advertisements, and the other for running a social media "contest" and allegedly failing to deliver the prize to the contest winner.

https://www.burges-salmon.com/news-and-insight/legal-updates/commercial/advertising-standards-authority-asa-bans-instagram-influencers-ads-for-disregarding-ad-rules

We writers like stories, we advertise, we promote, we try to use social media for visibility and profit... so these cautionary tales are good to know.

Most scandalous of all (for today)  Elizabeth Tuttle Newman, writing for the FKKS IP and Media Law blog discusses the slander of a public figure in No Slander, No Case...

https://ipandmedialaw.fkks.com/post/102h5ak/no-slander-no-case-court-dismisses-avenattis-defamation-claims-against-fox-new

Lexology link:

https://www.lexology.com/library/detail.aspx?g=8b3d5642-64ef-4e92-ad53-e0353a5569d4

The bottom line is that aggrieved public figures have to be able to prove actual and deliberate malice, and moreover,  mild inaccuracies or fanciful speculation are not necessarily defamatory. For any writer considering articles or biographies of interesting subjects, this is edifying reading.

Also precautionary....

For writers who own blogs or websites where other people may add comments, you should register a copyright agent and keep your account active by changing your password when prompted, which is usually every couple of months.

 https://dmca.copyright.gov/osp/p1.html

The designated copyright agent for this blog is Rowena Cherry.

The purpose of designating a copyright agent and registering with the DMCA Designated Agent Directory is to qualify for safe harbor protection. For an explanation, see here.

All the best,

Rowena Cherry  

SPACE SNARK™

http://www.spacesnark.com/  http://www.rowenacherry.com

 

Perils of Posting Photos... Even of Yourself

The copyright of a photograph belongs to the photographer.
Photographed persons have the right of publicity (which means that their images are not free for advertisers to use to promote services or products.)

For authors, this might mean that a selfie is the best possible photo for the back matter.

Legal bloggers Linda A. Goldstein and Amy Ralph Mudge, posting  for Baker & Hostetler LLP discuss yet another celebrity being sued for adorning her social media pages with photographs of herself without the permission of the person who took the lovely shots.

https://www.lexology.com/library/detail.aspx?g=1d6c17b9-b872-45f3-8e01-0054b21f1494&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2019-02-15&utm_term=

There might have been a time, early in self-publishing, when author-convention-goers might have been tempted to snap a photo of a cover model, and later to use that photo on a book cover. Models' rights and photographers' rights are much better protected these days.

Might this mean that copyright infringers face double trouble if they use an author's portrait to promote pirated ebooks?

On the topic of models' rights, Rick Kurnit blogging for Frankfurt Kurnit Klein & Selz PC last week discussed the case of Cozzens v. Davejoe Re and models' Lanham Act claims in addition to their allegedly violated rights of publicity because a company made permissionless use of six ladies' likenesses on a Facebook page.

https://www.lexology.com/library/detail.aspx?g=0aea81c0-40cd-4253-aa06-ac1d853ebc2b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-02-14&utm_term=

The Lanham Act concerns false advertising.  If a photograph suggests to the audience that the model, actress (or author) endorses or participates with the service or product being offered, that is false advertising and triple damages and attorneys fees may be awarded to the wronged beautiful person.

And then, there is the Australian defamation case that really could break the internet if it succeeds. Michael Bradley, writing for the Marque Lawyers takes a position on how likely it is that "news" sits and social media platforms could be held liable for defamatory, user-generated comments.

Why is it that tech companies can set up highly profitable fora, but have no duty to monitor them?  On the other hand, it is good to remember that individual users who generate comments can be sued for defamation... at least in Australia.

All the best,
Rowena Cherry