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Best Practices for Social Media Advertising
Social media is growing up, and this means that brands of all sizes and across all industries are using social media as part of their marketing strategy. Customer engagement and brand awareness mixed with some educational content and entertainment in one platform is a great reason to be on social media. Every post and share is an opportunity to drive users to company websites and boost sales, as well as to connect with customers on an emotional level. However, courts have confirmed that the basic tenets of intellectual property law and advertising law still apply. The following guidelines stem from common questions that clients often have in the area of social media marketing.
Get Permission to Share
Content and Images on Social Media Are Not Fair Game
One common misconception regarding social media is that it is acceptable to share or repost content created by third parties without permission because that is the purpose of social media. No one will bat an eye at you sharing photos of the newest baby or pet in the family with your own family and friends. However, when content is shared in a commercial context, the conduct of the company will be subject to a higher level of scrutiny. Social media platforms have terms of service that generally allow content sharing within those platforms, and when users post content, they retain ownership rights in the original content and give the platform the right to use, display, reproduce and sublicense to other users. Users within a platform can share content, but only if doing so does not violate any third-party intellectual property rights or any individual's right of publicity/personality.
Content may have a short shelf-life on a commercial social media page, but once posted, others can share in numerous ways, leaving a trail of evidence. While there are fair use exceptions to copyright infringement, mainly in the news and educational realms, keep in mind that fair use is a defense to infringement. Sharing content without permission in a commercial setting is unlikely to fall under the fair use exception to infringement. Even for news media outlets, fair use is hard to prove when sharing social media content without permission.
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