If you are part of the blogosphere, then you are aware what has occurred with NickMom. This post is not to jump on the bandwagon, but because I’m speaking at the Springboard Conference this weekend about legal issues in social media.
While I often speak on the subject, I rarely blog about it. I don’t have a way with words like my legal friend and fellow Blissdom panelist Sara from Saving for Someday. Plus, I’ve always been told you don’t talk about law, politics & religion, if you want to keep friends, as nothing seems to invoke more mud-slinging than those issues. So I’m putting on my wellies – despite the fact that legal posts can get technical rather fast, and the law is subject to interpretation. Yes, that last statement seems like an oxymoron, but we wouldn’t have so much case law (and lawyers) if laws were just as clear cut as we think they are.
Social media is a new field, and it is one of many professions that have arisen in the past century. Typists didn’t exist before typewriters were created, and pilots didn’t exist before the creation of an airplane. Laws are often created after the fact to address issues that arise beforehand. Stated simply, traffic laws didn’t create the Ford Model T. Rather the invention of the automobile, and the driving of it, created laws for driving. Airplane travel didn’t exist until an airplane took to the sky, and aviation laws have constantly been modified as the world has changed. Oh, and those laws about cruise ship drills and number of escape boats per passenger? You can thank the Titanic for that.
Blogging itself is changing the frontier of marketing and advertising. It is the ‘wild west’ of PR. Nothing is more apparent than the rising issue of copyright violations, and the issues of trademark infringement, in the blogger arena. It comes down to educating the masses: the law still applies even though the application of them is new. As Amy Lupold Blair from Resourceful Mommy stated, just because everyone is doing it, doesn’t make it right.
While copyright law is clear, it is being tested every day in social media. If you ask the average person if copying a book and selling it as your own is copyright violation, they would say yes. Yet, these same individuals don’t comprehend that you can’t re-publish someone else’s blog post or picture as your own. People generally don’t grasp that the use of a Google’d image is still copyright infringement and that posting of an image on Facebook or Pinterest doesn’t absolve copyright rules. People also don’t understand that posting a picture online doesn’t equate to permissible sharing, or that watermarking implies permission. The biggest misconception is that individuals believe Facebook, YouTube, Pinterest or other social sites’ “Terms of Service” agreements somehow absolve legal claims of the original content creator.
With regard to Trademark law, the best way I can describe it is to continue the ‘wild west frontier’ analogy. In the 1800s, many people migrated west to stake claim on a new frontier in America. A woman who did so is described in history books as a “pioneer woman.” (I think you can see where I am going with this.) While only Ree Drummond can confirm she has trademarked her Pioneer Woman brand, I’m providing this as an example that common words put together in a phrase that is used consistently over time in a certain context, and/or for certain services, could be trademarked. It is also important to note that it is not about who trademarks first or whether you have to trademark. If you can document the use over a period of time, and the use before anyone else, you have may have legal protection.
Back to present day and the Nick Mom issue. Type A Mom, Kelby Carr, wrote a post about her brand after many questioned her trademark-ability and the parody of her brand name. Amy Lupold Blair from Resourceful Mommy wrote a post about NickMom using bloggers’ images without permission (and, perhaps, in my opinion, there may also be common law trademark infringement of Type A Mom.) Both posts inspired me to weigh in on the legal statements made therein.
I also dare to say that I think there is still an underlying stigma here about Moms and women. Brands are starting to see the value in Mom and woman bloggers, but I’m not convinced that they respect us as colleagues. I don’t see too many male or Dad bloggers being subjected to these events in the social media space, and corporate apologies were more forthcoming to a male blogger than female blogger Kelby.
While there is a lot to be learned by companies and Bloggers alike, what should be a no brainer is a level of respect. From brand to blogger, blogger to brand, and blogger to blogger, it’s time to starting setting standards, and following them, in this new Blogging frontier.
I am an attorney, but I am not your attorney. Anything on this blog or in this blog post should not be construed as legal advice or legal services. If you have a question about copyright or trademark law, you should consult an attorney with specialization in those areas. Thoughts, images, and opinions are my own, and are, of course, copyrighted.