Law Office of Bradley S. Shear

Discussing your personal health or emotional well being on social media is not recommended. Health insurance companies, law enforcement, opposing counsel in lawsuits, employers, potential employers, academic institutions, etc... want access to both your public and private social media content. Therefore, everything you put online may one day be used against you.

On October 22, 2011 I discussed some of the reasons why you must be careful about posting online your personal health care status with Angie Goff of NBC 4 in Washington, DC. During the segment, Angie mentioned how Senator McCaskill used Twitter to discuss her progress during her recent 50 pound weight loss. While it may seem like a great idea at first glance to share this type of information with other people who are interested in losing weight it is not advisable.

Insurance companies may utilize your Tweets against you during the underwriting process and/or if and when you have a claim. In the United Kingdom, those who utilize social media may have to pay higher premiums.

To learn more about these issues you may contact me at www.shearlaw.com.

Posted October 27, 2011

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

As we begin the NCAA college football season, student-athlete social media usage is being hotly debated and dissected by the media. Some are advocating social media bans while others are recommending some of our country's future leaders to expose to third-party companies and/or school compliance departments their non-public private online interactions with others. After reading multiple articles from numerous major news outlets, I realize that some members of the media do not understand the legal issues involved with social media.

To learn more about these issues you may contact me at www.shearlaw.com.

Posted September 2, 2011

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

In the past year, multiple NCAA colleges and universities have banned some of their student-athletes from using Twitter and other social media platforms. Some of the student-athlete social media bans that I have heard about may be unconstitutional. Schools and teams who have Twitter bans include: Villanova men's basketball, Mississippi State men's basketball, New Mexico men's basketball, Miami men's football, South Carolina men's football, Iowa men's football, Boise State men's football, and Kansas men's football.

Generally, private colleges and universities have more leeway to regulate their student's activities than public institutions. For example, Brigham Young University (BYU) has a blanket ban for all of its students against pre-marital sex. Before attending BYU, students know about the school's pre-marital sex ban and it is part of the university honor code. In addition, every student signs an annual pledge to refrain from engaging in premarital sex while enrolled at the school. The ban does not single out one group of students over another and is equally applied across the board. Students who break this rule are punished according to the school's honor code.

Institutions have the right to create reasonable rules and regulations that are not discriminatory regarding social media usage. For example, some professional sports leagues have rules that disallow social media usage for a certain time period before a game starts, during a game, and for a period of time after the game. Generally, these rules are reasonable and should not infringe upon First Amendment rights.

Setting reasonable rules regarding social media usage that don't infringe upon a student's First Amendment rights is permissable and may be prudent for both public and private institutions. However, creating an outright ban on using Twitter and/or other social media platforms for a select group of students at a public institution is a clear violation of the First Amendment and may be discriminatory against both the students and/or the social media platforms.

Schools may punish their student-athletes for social media misbehavior that in the real world would also be punishable. For example, if a student-athlete acts in a manner that is deemed inappropriate either online or in the real world he may punished. However, I believe it would be very difficult for a school to argue that a student's social media/virtual activity be punished differently than his or her real world activity.

If the school is a public institution, in addition to the First Amendment the equal protection clause of the Fourteenth Amendment may also be infringed upon by a student-athlete social media ban. According to Tinker v. Des Moines Independent Community Schools District 393 U.S. 503 (1969), students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate and that in order for public schools to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

I do not see how an academic institution would be able to defend banning its men's football or men's basketball student-athletes from Tweeting during a season while the women's basketball team, the engineering club, or members of the student government are able to utilize Twitter or other social media platforms. In addition, it would be very difficult for an academic institution to defend an onerous social media ban unless a student-athlete expressly agreed to it before enrolling at the school.

If NCAA coaches are allowed to ban their student-athletes from Tweeting for an entire season/academic semester what will stop them from banning their student-athletes from utilizing email, cell phones, and taking digital photographs and/or videos? How does a coach justify banning Twitter but not Facebook, MySpace, Google +1, YouTube, blogging, posting opinions on other blogs or creating other types of user generated content? Could a university administration enforce a social media ban against certain student groups who it considers too radical or conservative? How are social media bans being enforced? What stops students from creating secret Twitter or other social media accounts?

Banning students from utilizing social media or requiring them to install invasive social media monitoring software (e.g. malware) onto their personal computers/personal accounts or to Facebook friend a third party so that the third party can monitor their social media posts is not the answer. Banning social media usage or deploying social media monitoring software may create major legal liabilities that may be avoided with an approach that combines common sense along with legal doctrine.

To learn more about these issues you may contact me at www.shearlaw.com.

Posted August 11, 2011

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved. 

Does the NCAA understand the legal implications of social media monitoring? The Associated Press reported that the University of North Carolina (UNC) has been accused of unethical conduct, and failure to monitor its players. In particular, the NCAA is accusing UNC with failure to monitor its student-athletes' social media activity.

On page 21 of the Notice of Allegations against UNC (Case No. M357, June 21, 2011) 9. b. it states, "[i]n February through June 2010, the institution [UNC] did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program, which delayed the institution's discovery and compounded the provision of impermissible benefits in Allegation Nos. 4-a, 4-c, 4-d and 4-e." In 9. g. the NCAA is requesting, "[c]opies of materials posted on Twitter by football student-athletes..." Furthermore, in 9. h. the NCAA is requesting "[a] statement summarizing information reported by ______(left blank) regarding the institution's efforts to monitor the social networking activity of football student-athletes.

As I previously stated on June 9, 2011, social media monitoring is a futile effort that wastes resources since crowdsouring is already performing this service for free. If the NCAA is now going to require its members to actively monitor its student-athletes' social media accounts this will open up a Pandora's box.

Will the NCAA soon require each of its member schools to have a "minder" follow their student-athletes to listen in on every conversation, phone call; and review every email, text message, electronic communication, etc... of their student-athletes? Will the NCAA soon require every student-athlete list all of their social media accounts to maintain eligibility? What if a student-athlete changes his screen name or deletes a social media account and opens a new one? Will the student-athlete be forced to notify their school's compliance office within 24 hours of the change? If a student-athlete forgets to report a social media account change to the compliance office will the student-athlete automatically become ineligible and/or the member school be found in violation of NCAA rules? If so, what will be the punishment?

Will there be strict liability for failure to report? What if a student-athlete forgets or refuses to list an account due to privacy and/or political speech issues? Will a student-athlete lose his scholarship due to a refusal to turn over his social media account information? What if a student-athletes' Facebook wall is private and/or his Tweets protected? What if someone hacks into a student athletes' account and creates posts that may be rules infractions? What if a student-athlete has a rogue account that is not reported to its compliance office? Will the NCAA require its members to track down every possible unreported student-athlete social media account and/or post?

Could a member school be stripped of a National Championship for failure to properly report all student-athlete social media accounts and/or alleged rules infractions that may be discussed on social media? The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe it may be advisable for the NCAA to rethink its social media compliance allegations against UNC and create a uniform policy that may easily be followed by all member institutions.

Social media usage by student-athletes cannot be eradicated. As the Congressman Anthony Weiner matter clearly demonstrates social media monitoring is futile and is a reactive and not a proactive approach.

To learn more about these issues you may contact me at www.shearlaw.com.

Posted June 22, 2011

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved. 

Courtney Love has agreed to pay Dawn Simorangkir $430,000 over allegations that Love tweeted false and defamtory statements about Simorangkir in 2009.  Love was upset over a $4,000 clothing payment to Simorangkir and Tweeted about the disagreement in a series of Tweets that made headlines.

My hope is that this case will put people on notice to be careful about what is posted online because there may be legal consequences for your Tweets, Facebook and MySpace posts, and any other user generated content that is created.

To learn more about the legal and entertainment ramifications of your Tweets or other social media posts you may contact me at www.shearlaw.com.

Posted March 4, 2011

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

There are many legal liability issues inherent with social media advertising campaigns. Some legal issues to be aware of include: copyright and trademark issues, privacy, FTC advertising guidelines and full disclosure violations, etc...

I recently attended a conference and one of the panels consisted of a group of marketing professionals. The marketers wanted to create an advertising campaign for a flat screen television company. The hypothetical promotion would encourage consumers to videotape themselves smashing their old tube television sets and then upload the video to a website. The flat screen television company would reward those who uploaded their television smashing videos with a new flat screen television. In addition, the consumer who had the "coolest" video would win $100,000.

At first glance, this hypothetical sounds like it would be a successful promotion. Who wouldn't want to watch a bunch of people smashing their television sets? This advertising campaign sounds like it may be inspired by a Gallagher (go to 7:00 in the clip) comedy routine and/or the Jackass television series/movie franchise.

Watching Gallagher smash watermelons and/or other fruits is still extremely funny. However, Gallagher is a "professional watermelon smasher" and comic and generally flying watermelon will not cause permanent damage to an audience member. In addition, audience members may be deemed to have assumed the risk of attending his show if they are hit with some flying watermelon or other related flying fruit. This type of scenario may be analogous to attending a baseball game and being hit with a foul ball.

Jackass was a television series (and later a movie franchise) on MTV that contained actors who performed interesting stunts. To reduce the possibility of lawsuits, MTV had disclaimers and warnings listed and mentioned before, during, and after each show. In addition, the television series did not encourage its viewers to perform the activities that were depicted.

In contrast to both Gallagher and Jackass, this hypothetical television advertising campaign encourages the destruction of a piece of electronic equipment that may contain dangerous chemicals and/or materials by consumers. This type of encouraged behavior may hurt consumers and/or others who are exposed to the encouraged activities.

Even though a company may put in place a waiver and/or other means to try limit their liability and/or to try to ensure that participants assume all risks associated with the advertising campaign, a lawyer for an injured participant may still file a lawsuit against the company and utilize a creative theory of liability. Therefore, before a company decides to do an advertising campaign with a social media component it should ask its legal department and/or outside legal counsel to fully review the proposal to ensure that it doesn't create any unforeseen potential legal liabilities.

To learn more about about the risks and unforeseen legal liabilities of your social media advertising campaigns you may contact me at www.shearlaw.com.

Posted February 12, 2011

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

The major tools that companies have to protect their intellectual property rights in the Social Media Age were created before and during the Internet Age of the late 1990's. Under current law, copyright and trademark holders have several different remedies available to go after cyber-squatters and those who utilize copyrighted material and trademarks without permission. Some of the tools available include the Lanham Act and the Anti-Cyber Squatting Protection Act, The Digital Millenium Copyright Act, and ICANN's Uniform Domain Dispute Resolution Policy.

Facebook, MySpace and Twitter, (scroll down to the Copyright Policy), and YouTube all have policies in place for companies to report theft of their intellectual property. Even though some of these companies, (Ex: Facebook) appear to have a policy in place that addresses the problem when a company's trademarks are being used by a third party as a screen/user name, there appears to be no legal tools available that specifically applies to screen/user names. Therefore, it is at the sole discretion of an online service provider to determine if a screen/user name infringes on a trademark.

Screen/user name intellectual property infringement is a major problem. For example, on Facebook there is a popular page that at first glance appears to be Nike Shoes. Upon closer examination, even though this page has over 2.2 million "likes" it does not appear to be a valid Nike Shoes Facebook page. In addition, if you type in www.facebook.com/nikeshoes you are directed to an entirely different Facebook page that appears to be another user. Visiting MySpace's "Nike Shoes Page" demonstrates the same problem. If you type in www.myspace.com/nikeshoes you will notice that you are directed to the page of a Nike shoe collector/seller.

Through a quick check of the United States Patent Trademark TESS search system it appears that "Nike Shoes" is not trademarked. However, "Nike" was trademarked in 1972 for "ATHLETIC SHOES WITH SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES" and "ATHLETIC SHOES WITHOUT SPIKES AND ATHLETIC UNIFORMS FOR USE WITH SUCH SHOES". Therefore, Nike has a very strong claim that the term "Nike Shoes" infringes on its trademark.

The bottom line is that intellectual property law needs to catch up with the Social Media Age and/or social media companies need to be willing to provide the contact information of those who are charged with determining if a screen/user name infringes on a trademark or if posted material violates a copyright. Providing forms for intellectual property rights holders to complete when an alleged violation occurs is a start but does not adequately address the situation. More accountability is needed.

Posted June 16, 2010

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Traditional sports marketing and brand management is in transition. For years, the professional sports leagues have relied on radio and print newspapers to provide them free marketing. The leagues provided journalists open access to their games and in return sports writers would report on the games, the players, and the teams to their audience. This basic model worked for many years. When television became popular in the 1950's, the model was tweaked and the television networks started to pay handsomely for sports content. In the 1970's, Ted Turner once again tweaked the model via cable television.

Over the past several years, we have watched the beginning of the end of print media, a changing radio landscape and a transformation from watching television via cable to the Internet. This media transformation has changed the sports marketing and branding paradigm. Consumers have become extremely sophisticated and are tuning out traditional advertising. People do not want to be sold to. They want to engage in a conversation with a brand. Passion is the name of the game and the best medium to harness this passion is social media. Social media is not just the Internet. Social media is about interacting with a brand and feeling connected to it.

The top consumer cult brand is Apple. The unquestioned American sports cult brand is the NFL. Each of these organizations have spent years connecting with their followers. The NFL's cult brand has been forged by the "Greatest Game Ever Played," "The Ice Bowl," and players like the Baltimore Colts' Johnny Unitas and the Cleveland Browns' Jim Brown. Games and players come and go. However, the experiences that fans have with these events and the players is what keeps fans excited and interested in the NFL.

Social media is all about passion. When a Facebook user is excited or upset he posts to his Facebook wall. In response, the Facebook user's friends may engage in a conversation about the post. An excellent example of this interaction occurred on the Facebook page "Betty White to Host SNL (please?)!" Even though Betty White has been in the entertainment business for more than 60 years, she may end up being best remembered for how she became the host of an episode of Saturday Night Live.

Several months ago, a Betty White fan created a Facebook page requesting that Betty White host Saturday Night Live.  The Facebook page's popularity grew to a point where Lorne Michaels, the creator of Saturday Night Live could not ignore it so he invited Betty White to host the show.  NBC knew or should have known that the Betty White episode would have a built in audience that would enable them to sell the advertising for the episode at a premium.  Betty White was hilarious on the show and it was a ratings success.  

Brands need to learn how to engage with their customers. If companies understand how to properly utilize social media they will be able to better predict the success of their marketing campaigns. In addition, they will be able to fully leverage the value of their brands to others who want to be connected to them.

Unfortunately, too many companies think the answer to engaging social media users is to focus their strategy on posting on their Facebook wall, or tweeting about new product lines and sales, and building applications that capture a customer's private information. Congress is in the process of drafting new online privacy regulations that may limit or change how personal information is collected and utilized. Therefore, the current preferred method of obtaining a customer or a potential customer's data via an application when a customer visits a Facebook wall or clicks on a link may soon be obsolete.

In the Social Media Age, there is no substitute for interactive customer engagement. Building a cult following is achievable if your company is ready, willing, and able to create and follow a detailed strategy. To learn how to design and implement a successful social media sports marketing and branding campaign that will abide by the soon to be enacted Social Media Privacy Protection Act you may contact me at www.shearlaw.com.

Posted May 20, 2010

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Branding products and services and how the law protects your brand is extremely important in the social media age. Recording artists, writers, and film makers are utilizing social media to create their brand and to include other brands in their work to attract the attention of corporate sponsors.

Recently, a New York Times article discussed how some entertainment contracts include specific branding clauses and that some talent feel pressured to include certain brands in their work to attract sponsors. Television product placement is not new. During most live television programs the announcers usually state throughout the program that the show or event is sponsored by xyz company. One of the most famous movie product placements was Reese's Pieces in the movie E.T. in 1982. When I watched the movie as a child I had no idea that this was a product placement. However, as an adult I would expect that most adults who watch the movie know or should know that including Reese's Pieces prominently in the movie was a big advertising coup for Hershey.

Under the recently revised FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising "material connections" between advertisers and endorsers must be disclosed. However, I am wondering when is this threshold actually met? For example, if an artist includes a brand in his work in the hopes that the brand will end up sponsoring his work, and then the brand eventually sponsors the artist's work does this connection need to be disclosed since the original work was not created with a "material connection" between the artist and the brand? If an artist posts his original work on Youtube or another social media website before there is a "material connection" but later a corporate sponsor is attracted to the project does the artist now need to disclose this sponsorship?

These are some of the many legal issues that the social media age has created. Constantly changing technology will only make these issues more difficult to analyze.

Posted April 6, 2010

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.