“Tweet,” “share,” pin,” and “like.” If you spend any amount of time exploring the social media universe, these are the buzzwords that you are certain to encounter along the way. To the digital marketer, these words translate into a cheap and efficient method to reach a very large audience. Indeed, the inherent viral nature of social media presents marketers with an unparalleled direct gateway to the consumer marketplace. However, while the benefits of using social media to tap new and existing customers are many, individuals and retail businesses that use the medium for commercial purposes must be aware of the potential legal pitfalls that lie in wait for the careless user. To be certain, utilizing social media in connection with retail advertising may trigger a range of legal issues, including, copyright, and trademark infringement, defamation, and rights of privacy and publicity, in addition to a host of advertising related rules and regulations.
Usually, posting a photograph to your Facebook page is a benign activity that involves almost no risk of liability. In the commercial context, however, that same photograph must be owned by or licensed to the poster, and it must not depict any unsanctioned copyrightable images, trademarks, persons, or brands. Similar assurances are also necessary for the use of any designs, graphics, music, video, or other artistic content. The availability of such materials online and the fact that similar content is freely linked or posted by users via personal social media accounts does not mean that those materials may be used by a commercial business. Specifically, the Digital Millennium Copyright Act, together with various other federal and state laws, address infringing use and prescribe the procedures and penalties applicable to such wrongful activities.