Legal Risks Brands Should Consider When Using Social Media Marketing

by T+B Blog Team on February 25, 2014

Many brands use social media channels to demonstrate a more personal touch and to gain consumers’ attention. However, they need to avoid the legal pitfalls of posting content without seeking permission, Digiday says in a recent post.

One example to consider is fast-food chain Arby’s, which recently tweeted at Pharrell Williams about his Smokey the Bear-inspired hat that he wore during the GRAMMY Awards. Arby’s tweeted, “Hey @Pharrell, can we have our hat back?” without asking the singer’s permission to use his name. The tweet drew much attention, seeing 83,451 retweets and 49,045 favorites. No legal action was taken by the artist for tying its brand messaging with his name. Instead, Pharrell posted a reply to the tweet, which was Arby’s most successful social media post to date, according to Marketing Land.

The GRAMMY Awards ceremony is just one of many events that brands tap for real-time marketing. Using this method can be a tricky game, especially when citing names of famous people and other brands, or making analogies between them. Real-time marketing is about acting quickly, but not every brand’s attempt is crowned with success. Even Burberry, a British fashion house known for its digital savviness, faced legal action over using an image of Humphrey Bogart wearing a Burberry trenchcoat in the movie “Casablanca” on Facebook without permission from the Bogart estate. While the clothing company insisted that it used the photo to prove the historical influence of its brand, the heirs of the Hollywood icon alleged that the aim was purely commercial. The case was eventually resolved out of court for an undisclosed sum.

These are only two of the possible outcomes that may happen when brands refer to celebrities in their posts. Unfortunately, the rules of engagement on one network are not the same as they are on another; if a company repins a copyrighted image to its Pinterest board, for instance, it could face legal action. On Twitter, however, retweeting copyrighted material may not have consequences, as the person the company retweeted might be held liable vs. the company behind the retweeting.

Another challenge for brands seeking to expand their influence on social media is the growing number of people taking an increasingly closer look at social media to look for abuse, among them celebrities and other rights holders. This heightened scrutiny has led to an increase in the number of infringement claims.

What are your thoughts on posting ‘risky’ content without seeking permission?

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