The IP of Social Media | The IP of Everything Podcast - Episode 31

Jennifer Van Kirk
Welcome everyone to the IP of Everything Podcast where we seek out and discuss the intellectual property issues contained in everything around us - from the obvious to the obscure. This month's episode is the IP of Social Media. 

In this episode, we will be discussing the many IP aspects of social media. And we have a special guest with us, our colleague and partner, Rachel Nicholas. Rachel Nicholas is a partner at Womble Bond Dickinson. She specializes in trademark, copyright, publicity rights, and social media matters. We’re happy to have her here today. This should be a fun episode, so thank you for joining us.

Jennifer Van Kirk
Welcome to the IP of Everything podcast. I'm Jennifer Van Kirk and with me as always is my co-host, Aaron Johnson. Both Aaron and I are intellectual property attorneys and partners at the law firm of Womble Bond Dickinson. And with us, as I mentioned, is our special guest, Rachel Nicholas. 

Hi, Aaron. Hi, Rachel.

Rachel Nicholas 
Hi, thanks for having me.

Jennifer Van Kirk
It is our IP of Everything tradition that we ask whether each of us have a personal connection to the topic at hand. So, for our IP of social media podcast, I'd like to know what your favorite social media moment is. 

Rachel, I'll start with you.

Rachel Nicholas 
Great, okay, well, I am a big Taylor Swift fan, and I know this is not another Taylor Swift focused episode, but in the last year, Taylor posted that she bought her master's back, which also does have a nice IP connection, and that she got engaged. So, both of those were very fun days to be online as a Swiftie.

Jennifer Van Kirk
That's awesome. How about you, Aaron? What is one of your favorite social media moments?

Aaron Johnson
Well, very similar to Rachel, I think it also is a breaking news moment. It was recently when the Lakers and Dallas did their big trade with Luka Doncic. And it was also an interesting time to be online just because people didn't believe the news, people were trying to figure out if it was true or not, and there were lots of reactions. And it just, it felt like a communal kind of gathering and discussion, but also pointing out how social media has really taken an increased role in people's day-to-day lives because I think in earlier years this would have been ESPN, Sports Center, they would have broken into it, and the fact that they chose social media to announce it or it came out first on social media really indicates where we're moving as far as social media goes.

Jennifer Van Kirk
Yeah, it really shows that that's where most people get their information these days, right?

Aaron Johnson
Absolutely.

Jennifer Van Kirk
Well, my favorite social media moment dates back to COVID with that poor attorney who had the cat filter get turned on during, I think it was during a hearing with a judge and he was trying to, he couldn't figure out how to turn it off. And they had to say, you know, your honor, no, I'm not really a cat. I don't know what's going on. I mean, I'm not the most technical person. So, I have to say, I really felt for that poor man because I could totally see something like that happening to myself. So that's probably my favorite social media moment.

Aaron Johnson
It was also interesting that I feel that went viral in the attorney community. I feel there's probably no attorney in the US who has not seen that clip. And I don't know if people outside of it realized how, not important, but how famous it is within the legal community. It really shows how social media can get around, but also that there can be some niche aspects where if you're not in the law community, you might have never even seen it.

Jennifer Van Kirk
That is true, yeah, it was probably particularly funny and cringe worthy for those of us who are lawyers and who can imagine being stuck in front of a judge with a cat filter on.

So today we are talking about the various aspects of IP within social media. We're going to talk about some specific aspects that we've seen, disputes arise in, and that we've seen clients have issues with. One of them is account ownership disputes. Another is the aesthetic and brand protection for social media. Third topic are copyright in social media ads and music, and then finally we'll be talking about some enforcement and takedown issues. 

So, for the first issue we're going to review is who actually owns a social media account. And when a business relationship ends, one thing that really surprises people, and a very unpleasant surprise, is the fact that it can be up to dispute as to who actually owns the social media account. 
Rachel, do you want to take us through a recent case on this issue?

Rachel Nicholas 
Yeah, absolutely. So, a case that really underscores this issue is JLM Couture versus Hayley Paige Gutman. And I actually have been following this case for years. I remember when it first happened, the initial lawsuit was filed in 2020 and it sort of made a splash and then stayed relevant for the five plus years that it took to resolve. So, Hayley Page is a wedding dress designer, and back when this dispute first arose, she was employed by JLM.

So, the relationship between those two parties had fallen apart. They were working towards a new contract, and there were multiple issues that they couldn't work through in that contract. And then one sort of linchpin that turned into the lawsuit is what happens with the social media accounts associated with her name but was also the name of the dress brand. So, the employment agreement with JLM granted the company an exclusive license to her name. So, both Hayley, Paige, Hayley Page, Hayley Page Gutman, any iteration of her name was sort of under exclusive license to JLM. So, this relationship falls apart. She continues to use her social media accounts, which are, you know, @HayleyPage, @MissHayleyPage.

So, they sue her for trademark infringement, breach of contract, and ultimately, they are seeking control of those social media accounts. Here, it was an Instagram account and a Pinterest account that were at issue. The relationship between the parties, they had been under contract for the better part of a decade, and these accounts were created after the initial contract between the parties. Then of course, over the course of that employment relationship, Hayley Page really did become very well known as a wedding dress designer. 

Her social media accounts, this Instagram account, amassed a very large following - a million plus followers. She did post both sort of sketches and wedding dress related content, but she also posted a lot of her own life. Her dog, she's got this cute bulldog that sort of snorts around, and her personal life, her fiancé, now husband. So, it really was a mix, and I think it's interesting because that's what makes sort of an authentic account that drives a large following like that. Does so in part because people connect with it. So, I think there was a real argument that this account was not just merely a business account. It wasn't just wedding dress content. It was also sort of Hayley Page's real life.

So, they sue and initially, JLM is granted a preliminary injunction and then even after that, they're awarded the accounts. So they take control of the accounts. Hayley Page, not using her own name, takes to social media and tells her audience, again, not under that account, which is now under JLM's control, she sort of tells the story of what's going on. And I think this is another interesting part is that it was not only sort of very really litigated in court, but it was litigated in the court of social media and public opinion. She is very beloved, so there was a lot of energy behind her in this lawsuit. 

They're initially granted control. She appeals. On appeal, the Second Circuit did vacate the account transfers. They had found that what the district court did to decide ownership sort of skirted what they thought should have been addressed as sort of a true property ownership dispute – who owned it? And then is there a good path showing the transfer of title of that ownership? 

And again, looking at the contracts these parties had seen, the accounts didn't exist when they entered into an agreement. So, you've got JLM saying, we have this very broad grant to anything she creates that's related to the wedding industry at all. This account clearly has content related, shouldn't that be ours? And then you've got Hayley saying, this is my name and this is just my life. That is not clearly contemplated in the agreement.

And so again, you know, different courts, the lower court found initially for JLM, the second court sort of reversed that and then the district court did end up awarding Hayley control of these. This was years long. Again, played out very, very publicly. And then of course, in part because of the years long, very expensive, very public nature of this case, you throw in COVID, JLM ended up filing bankruptcy. And so the resolution to this case is, so they filed bankruptcy in 2023, but just last year the parties in May of last year were able to settle the dispute. 

Hailey paid a couple hundred thousand, was released from any further claims, and gets the rights back to her name. And again, the million followers as part of her account, and she is sort of back in the wedding industry and producing the content in association with that work as she's always wanted to do.
So, it was a really interesting case. It was interesting in how it played out in social media, it was interesting in that you had a sophisticated party who had put this contract together, and yet there were a lot of gaps in what they had contemplated as far as ownership of social media, which ended up being a really important asset to both parties.

Jennifer Van Kirk 
That is really interesting. What was the date of the contract that the parties entered into? It was pre-COVID, right?

Rachel Nicholas 
It was pre-COVID, it was at 2011. So, the initial contract was very old, and then the accounts weren't created until 2012, and then the parties were, 2019-2018, trying to renegotiate that - let's revisit the terms of this contract. And one of the things they did get into disputes over was Hayley posting personal stuff on this account, which sort of flagged the issue that, uh-oh, the parties are coming out on different sides as to whether they think the contract dictates that the accounts are owned by JLM or whether Hayley has an argument that those are really outside of that initial contract.

Jennifer Van Kirk 
Yeah, it's interesting. I wonder, I mean, name, image, and likeness, of publicity has become so much more prevalent, valuable, really something that people pay attention to now. And that wasn't as much the case 15 years ago. So, I wonder if someone would be as open to entering into such an incredibly broad contract now. Because that's just really… giving somebody else the exclusive license to your own name seems like just something that's a really, really, bad idea.

Rachel Nicholas
Right. Well, and I will say this was one point that the way it played out in the court of public opinion is people were just flabbergasted that a company would say that she can't use her own name. But this is, of course, something that you can do, right? Kate Spade is another example. This is something that you can sell and monetize and give exclusive rights to. But it was very funny that that was something that I think a lot of the folks who were in Hayley's court just couldn't get over is how can you possibly tell this woman she can't use her own name? And so it was interesting to see, and I think you're right, that this many years later I think a lot of people are more in tune to those issues given NIL (Name, Image, and Likeness).

Aaron Johnson
And I wonder, so when there was a few years gap then when she didn't control the accounts, did JLM keep posting? Did it lose a lot of followers? How did that affect the social media itself?

Rachel Nicholas 
They did. Well, so they kept posting again. She under a different account, had told the story, just saying, hey, that's not me anymore. I feel like it's important you should know this. I've been sued. Mind you, of course, JLM absolutely can, and did take her to court about some of the things she was saying publicly. So that was another piece of the lawsuit. But they did lose a lot of followers. It did become 100 % wedding dress content. Folks who had stayed up or had found her new account… and she was signing things like, a girl you may know, because she couldn't use her name. And so, it just sort of became this, like this lore surrounding, let's, you know, we'll follow her to another account to show that that's who we're following and not just the dresses. And then of course the line of dresses was Hayley Page, but they had to hire a new designer to create Hayley Page dresses. And so there just really was a disconnect between the content that was being put out on - the JLM controlled Hayley Page social media versus I think what initial followers had come to want and expect from that account.

Aaron Johnson
Well, when you mentioned the uproar about not being able to use her name, the first thing that came to my mind was fashion designers because I feel like so many of those companies may start out as a name and then they get sold. I guess to me the difference is there, you don't have that social media, that kind of personal connection. So, I think it was Spade, or I forget who, it was Spade right? Because she sold and so she was no longer in control, I believe. I think we kind of understand at some point when a brand becomes big enough, that the name might represent more than the person, but there also does seem to be something wrong about not being able to use your own name.

Rachel Nicholas 
Right, well, and I think another distinction there is that she had been the face, so it was, her name and her face, and I think she really, I think she really would lean into the fact that she was an influencer in addition to being a dress designer. It was part of, again, I mentioned it earlier, the authenticity that helped build this audience. It was her capturing more than just designer Hayley Page on that social media. I do think that was a big part of how she grew her audience. I do think it made it very difficult to sort of delineate that this was just a business account versus this is really, you know, her influencing and being her authentic self. That's something separate.

Aaron Johnson
And did this case affect, I know they went bankrupt, but did it affect JLM's relationship with other influencers? Because I can see how, if she's the face and she's being treated, I guess, unfairly to their set, that if you work for them, you'd want to make sure that your contract is buttoned up a little bit.

Rachel Nicholas
Yeah, you know, I think JLM certainly took a number of reputational hits with this. Again, some of this is a timing thing because this was 2020. There were some other financial hits, lease agreements that based on the pandemic. So, I think they were headed to a financial place of struggle anyways. But yes, this very, very, public dispute in which in the court of public opinion, they were the bad guys. I think that that reputational damage, if they could do it over again, they might wish those negotiations had started in a very different place. Though I think I can, on the other side, I think you can see where they're coming from. Like the Kate Spade, this is a thing that can be contracted for, so I do think it played out different than it otherwise could have, because I do think there's a sort of like influencer piece that hadn't been true in some of the other, you know, sort of names as brand scenarios that we can think of.

Aaron Johnson
I find it comparative to, I think there was a case a few months ago with Jack Nicholas, the golfer, who had, I think he had sold his name, image, and likeness for golf course design. And they got a lawsuit over it, and there seemed to be a lot less sympathy for him. For me, it seemed one of the big differences is that he was already famous when he entered the contract. He's a multi-millionaire golfer, I'm sure he had good attorneys helping him out. And so there seems to be less sympathy where if he entered into an arrangement to sell his name for golf courses, that he probably did it knowing what's ahead of himself, knowing what's happening. So while it still seemed a little unfair that he might not be able to use his name, he clearly had that opportunity and that chance to not sell it if he wanted to.

Rachel Nicholas
Yeah, that's really interesting, too. That was another thing that was sort of well litigated in this case. One of Hayley's arguments is that that initial contract she signed back in, you 2011, she was 25, early 20s, and she claims she wasn't represented. So you did have a big entity on one side. And Jennifer, you mentioned how sort of broad and sweeping that grant is. That was sort one of her arguments too, is that this was not done with the benefit of counsel on her side and it's, you know, sort of unfair based on that as well.

Jennifer Van Kirk 
You know, looking at this case from a practical standpoint, know, let's say you're representing the company in this situation, how would you have tried to avoid this dispute?

Rachel Nicholas 
Well, you know, and I – hindsight - I appreciate that hindsight, and I also appreciate that I think social media is in a different place today than it was when this contract was initiated. To me at this point there's just no way you could design this type of contract without explicitly mentioning social media. 

And not just mentioning it, but also you know, sort of parameters about what the account name could be, about what type of content explicitly about who would own you know both the content posted, but also the account itself. I do think social media was certainly did exist back in 2010, 2011, but I think… it wasn't what it is today. 
So, I think there are easy lessons, like how could you not, you just explicitly address what would happen with social media accounts. And so probably, because they weren't explicitly mentioned, and because they didn't exist at the time of the contract, it did allow both parties to sort of point to provisions in support of their position. I think today, knowing how valuable accounts can be, and how valuable social media content can be, you would really just want it explicit in any agreement like this.

Jennifer Van Kirk 
Well then let's move on to the next topic, which is whether you can protect a vibe or an aesthetic. You do hear people say “they copied my look”, you know, “they copied my vibe”, but that's a pretty hard claim to make. Can you maybe give us a little bit of a background of that as well? I understand there's a famous case on this issue as well.

Rachel Nicholas
Yeah, sure. The case here is Gifford v. Sheal. It's often called the “sad beige” influencer case. This involves allegations of copying an influencer's content style, branding, and presentation. In this lawsuit, Gifford alleged that this other influencer, Sheal, had copied her right down to specific frames in certain videos.

She claimed that there was sort of like an uncanny repeating pattern of… she would post something and then Sheal would post something eerily similar. And that, you know, sort of came down to even like mannerisms of speaking. There was an allegation of a tattoo being copied.

So, Sheal, our alleged copier, sought to dismiss these claims, arguing, amongst other things, that you can't steal an aesthetic or a vibe of an individual. Those aren't protectable IP. And the court agreed in some part but did allow some of Gifford's claims to proceed. There was a DMCA, Digital Millennium Copyright Act, that was allowed to proceed, misappropriation of likeness claim was allowed to proceed, vicarious copyright infringement, and then trade dress infringement claims. 

There were sort of a number of claims that were allowed to proceed, so I do think this one was being watched closely. Again, I think as a general point here, copyright protects original expressions, and not really general ideas or aesthetics. So, it did make it very difficult for her to claim ownership over what was essentially a color palette because it's not as though Sheal, our copier, was taking the exact videos or the exact images. She was sort of doing her own recreation of a style. And again, the sad beige style is sort of widely done in the influencer space.

Jennifer Van Kirk 
And for those who don't understand, can you explain what this sad beige style is?

Rachel Nicholas 
Yeah, so I read a very well-done news article about this where the writer went to both of their homes and he said you just walk in and everything is neutral. Everything is white, or beige, or some iteration of tan. It's textures, but no color. It's a very clean aesthetic. It's, I think he described it as…

Jennifer Van Kirk 
But somewhat sad, it sounds like. Clean, but somewhat sad. Okay.

Rachel Nicholas 
Yes, clean but somewhat sad. He says it doesn't feel lived in because of course living there would be, iterations of color somewhere. But they're beautiful homes and the way they're putting together their videos is very aesthetically pleasing and is very on trend. So, both of them did relatively well, did amass followings and were able to earn money sort of leaning into this sad beige aesthetic.

Aaron Johnson
So, the style is not just for the, I guess I thought it was like the account, but this is actually the, I guess the style of products they like, like what's in their actual house is different. It's the same.

Rachel Nicholas 
Yes, yes, and this actually does come out in the case a little bit. So just a spoiler, you know, I said that a number of claims were allowed to proceed, but plaintiff here released them in non-suit without the defendant paying anything. So, she did end up walking away from this case.

Again, there's a lot of reasons people do that, the expense, but I do think there just wasn't a whole lot of there. And one of the things that the defendant here said was, you know, they, a way that they make money by posting in this aesthetic is linking the products that you can buy. So, you might like their living room and you might like the ottoman and you could link to buy it. And a lot of what they're linking to is Amazon products. And so Amazon has this affiliate program where they pay influencers for linking to their products and Amazon has an algorithm that curates and says, like sad beige things, I'm going to send you more sad beige things to sell on your platform. And it is very likely that these two influencers, along with many others, were getting very similar lists. So, you have sort of our plaintiff Gifford saying, she's selling the exact same products, her house looks the exact same, we're posting very similar. And it, you know, one of the defenses here is just that that's the products that matches your match aesthetic. And again, there just might not be anything actionable about that.

Aaron Johnson
Just the way the algorithm [works].

Jennifer Van Kirk 
Yeah, that's super interesting that the backstory of some of that is that that's what Amazon is sending them to promote.

Rachel Nicholas
Yeah, yeah, yeah, it's learning. It knows they both like the whites, the tans, the beiges, and here's what they can sell in that that fits that aesthetic.

Aaron Johnson
The thing that I found surprising about this is that, and maybe I don't know enough about social media, but it seems like a lot of social media is now trends, which is do the same dance or take the same audio or, it seems so much of it is, and maybe make it your own, like riff off of it, but that I think consumers of social media are used to seeing similar videos from different people or similar dances from different people. So, you know…

Jennifer Van Kirk 
Yeah, which is why pretty much every 15-year-old girl everywhere is dressed exactly the same.

Aaron Johnson
There we go, yeah. And so, you know, it almost seems surprising that somebody would say, “I can't believe she's copying my style”. I'd be almost more shocked that nobody was copying it or that something could be completely unique.

Rachel Nicholas 
Yeah, yeah, I think that's a fair point. I think, too, there's probably a little bit of, you know, it is a very saturated space. There is a lot of overlap. There could be a sense that you feel like if you are linking the same products, you know, I'm not buying two ottomans for my house, even if I like what you both are putting out. So, it's whoever I've clicked on. So, I think there was also feeling like having somebody do something so similar might mean that she's diverting money from you by getting the clicks that you're no longer getting. And you're feeling like she's just copying what you're doing.

Jennifer Van Kirk 
So, for the creators who might be listening out there, if you can't protect a vibe or an aesthetic, what can you do to build enforceable IP around your social media brand?

Rachel Nicholas 
Yeah, absolutely. Again, you can build enforceable IP by legally protecting the tangible components that help you create that vibe. This could include registering your trademarks, or logos, or your brand name that people are looking for your content under a certain name. You can of course secure copyrights on particular images, videos, and then again, to the extent that you're entering into relationships, you can use contracts and be mindful of the way that social media interacts with what you're contracting for to protect your assets in that way and of course also to protect trade secrets to the extent that that plays into what you're doing on social media. So, there's still components that can be protected, but the general aesthetic, again, there just is not going to be a lot to protect on a color scheme or a styling of images like that.

Jennifer Van Kirk 
Very interesting. So, let's move to the next topic, which are copyright risks in social media and brand posts. So, a lot of brands assume that if music is trending on TikTok, it's fair game. Let's talk about why that assumption is so dangerous, and specifically the Warner Music v. Crumble case.

Rachel Nicholas
Yeah, absolutely.

This is one of many, many similar cases. It's a recent one. This involves sort of allegations of widespread and willful copyright infringement based on music that was used in promotional social media posts. So, the complaint alleges, from Warner Music Group, alleges that Crumble used well over 150 of their musical recordings in promotional videos on social media. And the damages are just sort of extreme here. The types of music that they're alleging were infringed includes all of the biggest names in music, Bruno Mars, Lizzo, Taylor Swift, Mariah Carey, Ariana Grande, Beyonce. They're saying,  [Crumble] used this into a commercial end without proper licensing or authorization. 

The background here is this case is getting a lot of attention in part because of the high, many millions of dollars, alleged at issue here. But also, because there's a number of facts that point to sort of willfulness. Crumble, at some point posted a TikTok sort of making light of the legal issues and saying they couldn't use trending audios because legal said so, but then they continued to do it after that point. So, you have this sort of willful component about it. 

Obviously before the lawsuit was filed, were demand letters sent that sort of went ignored or under addressed. You have this influencer liability component of it. So, you've got Crumble doing its own posts, but they've also partnered with influencers who were also using music without a license. And so you've got this sort of vicarious and contributory component based on, you're paying these influencers and you're in some instances, even sort of jointly posting.

So even though it's their account, it's your product, they're getting paid, there's some potential liability there. I think this is, it underscores an issue that we're seeing a lot of as social media has become increasingly important to brands. It is a place where a lot of marketing dollars are and should be spent because it's a big business driver. I think brands forget that, or misunderstand, that just because there are trends and there are accounts using music, that that is in a non-commercial context. So, using it to promote a product or in connection with your commercial enterprise is going to pose far greater legal risk and land you in the exact type trouble that that crumble is now seeking its way out of.

Aaron Johnson
Jennifer, this strikingly reminds me of, I think, an earlier episode we did on the podcast about, I think it was the use of Bernie Sanders and kind of these kind of viral moments, which I think was exactly the same thing with what Rachel's mentioning here, that just because a non-commercial use is trending doesn't mean you should use it commercially because the potential risk is vastly different between the two of you.

Rachel Nicholas 
Yeah, absolutely.

Jennifer Van Kirk 
Yeah, we get these questions a lot from social media departments at clients of, well, so-and-so, you see this everywhere, why can't we post it?

Rachel Nicholas 
Well, and I do think, and I think we, you know, there's also sort of levels to the risk is one, if you are, you know, a business or an entity or a brand and you're getting in on that trend, that's sort of, you know, you're upping the risk. But two, what Crumble was doing here was just sort of directly getting in on the content to sell its cookies. Like they were using songs in connection with new flavors. And so, it wasn't merely getting in on trends. It was also just a very commercial end to the way they were using these songs.

Aaron Johnson
And this may point to my lack of knowledge about social media here, but were the songs they were using, were they the ones that are licensed by the platform? Doesn’t Instagram have a way to include a song, or are these their own songs?

Rachel Nicholas
You know, this is another factor that does not look great for crumble. It's sort of on the list of why this had such legs and got such traction is so there was an allegation that they were sort of circumventing the mechanisms put in place by these platforms. Because again, if you are an individual, non-commercial, you do have access to one library. And then if your account is appropriately set up as a corporate account, as a brand account, you'll have access to a different, much more narrow library. You will be tasked with getting the appropriate licensing in place. 

So, there was this allegation, they were sort of circumventing this by labeling their posts as original audio, which would buy bypass the filters that would detect whether they were appropriately using music or not. And again, that's a bad fact. We do always counsel clients that you've got to follow by the rules and skirting them is going to be along, put in the list of bad facts if you ever end up in court over this.

Aaron Johnson
And so Rachel, was there a conclusion to this case? Where is it at now?

Rachel Nicholas 
Nope, it's still very active. It's very early days. It just did get a lot of attention, in part because, you know, of, Crumble does really well on social media, and the damages alleged are in the many tens of millions.

Jennifer Van Kirk 
Now, when you're advising like a brand or an influencer, what is the biggest copyright red flag that you see over and over in the social media space?

Rachel Nicholas 
Oh my goodness, there are so many. Again, I do feel like on both ends, brands and influencers are figuring out where the boundaries are and how to stay in the lines. But we do see a lot of unauthorized use of third-party content, such as music, or images where they don't have permission. We see a lot of use of celebrity images in connection with corporate accounts where they don't have explicit permission. Other major issues we see are violating platform terms of service regarding the rules of engagement on the platforms or content ownership. On the influencer side, we sometimes see failure to disclose that it's sponsored content in the way that you're supposed to, and then disputes over the ways in which you're claiming ownership over this user generated content. 

So again, there's sort of, it's an area rife with a lot of issues that just continue to come up. But I do feel like because it's such an important space and because we are starting to see sort of case law shape, what the boundaries are, both brands and influencers are getting better at navigating it legally.

Jennifer Van Kirk 
Now let's segue then into our last topic which I think kind of goes along with just what you're saying. When you do see misuse of third-party content or your own content on social media, what are the mechanisms that are typically used to address that misuse?

Rachel Nicholas 
So, you know, there's a few tools that we have in the tool belt and one of them is a DMCA takedown, which is sort of a complaint you can submit to any of the major platforms if your copyrighted works are being infringed.

That platform will take action to remove that content, which keeps them, know, it's a safe harbor for them to act quickly to remove it. If there are trademark issues, there are also mechanisms to report that type of trademark abuse to the platform and have them take action. Of course, if you do know who is engaging in this infringement, it's often the case that going directly to them with a demand letter is another tool that will result in the type of addressing of this infringement that, you know, that clients or content creators are looking for. And then of course, if there are, you know, sort of egregious issues that are really causing a lot of problems, you can consider litigation.

Aaron Johnson
What about from the content creator side? Are there best practices as far as, do you act quickly? Do you acknowledge the infringement or sometimes you fight it? How have influencers found the best way to handle those?

Rachel Nicholas 
You know, it's interesting because I think back to our sad beige case. If you are on the side of thinking that you're being infringed, think one thing that if you're not a brand with a robust enforcement program, but you are an influencer who is worried about your content being infringed, trademark or copyright, I think one thing you can do is address or at least prioritize the issues that your audience brings to you. I think that's in some ways can be a nice filter for or what is causing actual and actionable confusion in the marketplace. And so I think that's a place that on the influencer side, if you are worried about infringement, that's a place that you might start is, where am I seeing that my audience is being confused or deceived? And then maybe take action on those elements first.

Jennifer Van Kirk 
How quickly have you found that these takedowns are addressed? Like how quickly do the platforms typically act?

Rachel Nicholas 
...It depends on the platform. It can be very different depending on who you're submitting this take down to. Some are a lot slower, and some have, you know, the complaints filter through sort of a lower level, which might result in an erroneous refusal. Like, you feel like you have a very straightforward claim for infringement, but that might not be landing on the desk of an IP attorney. It might have to go through lower level, so it might require some back and forth. There are platforms that, you know, same day we're going to get a good result, and there are others that's going to take a little bit of back and forth to get them to see our side, get them to address the infringement.

Jennifer Van Kirk 
At what point have you found that it makes sense to stop relying on the take down mechanisms, and that type of thing, and escalate beyond that?

Rachel Nicholas 
I think when you've got sort of a repeated problem, so if there's a repeat infringer and you are having issues where your audience or consumers are reporting that they're confused or that it's resulting in them, for example, if they're ending up thinking it's you and trying to make a purchase and being scammed, that's something that you'll want to escalate and address very quickly via whatever methods you can, because that's real damage to the consumer and to the brand.

Jennifer Van Kirk 
This has been really helpful and really interesting. In terms of wrapping up, if you could give creators and brands one piece of advice to avoid ending up in an IP dispute about their social media, what would it be?

Rachel Nicholas 
Ooh, I think my advice is to contract for it, to think it through when you're entering your agreements. One example here that I like to give is, you know, ownership of content is a big linchpin on both sides. You know, the creators really like and want ownership of what they're creating. The brands who are paying for it really like and want ownership. And I've seen in multiple instances where you'll, you know, we'll be looking at an agreement and it will say that one side or the other has ownership, but then there will be a real limitation on how they can use it. 

For instance, the brand will have won the battle over ownership of the content, the agreement will say they own it, it is wholly theirs, and then the next provision will be like, but it can't be used after the end of the term. And so I think there's thinking through fully what you want to do with the content, either as a creator or as a brand is really important, and getting it right at the contract stage is sort of critical for managing expectations and getting what you want out of a deal.

Jennifer Van Kirk 
That's great advice, Rachel. Thank you. Well, that is it for this month's episode. Thank you everyone for listening and joining us today. And a special thanks to Rachel for joining us today. I hope you found this as interesting as we did. Join us for our next episode, which is the IP of Celebrity Personas.