Knobbe Martens partner and advertising & media practice co-chair Jonathan Hyman and associate Nickolas Taylor have authored the article “Social Media and the Law—A Warning for Brands and Content Creators,” published in AdAge.
Hyman and Taylor’s piece centers on a lawsuit filed by former congressmember George Santos against late night talk show host Jimmy Kimmel. In the suit, Santos alleges that Kimmel unlawfully used Cameo videos created by Santos and showed them on Kimmel’s program without Santos’ consent and in violation of Cameo’s terms of service (TOS). The authors use Santos’ lawsuit as a jumping off point to look at the hazards of using content on social media that, while public, may violate the TOS of the platform and open the door to legal risk for brands and creators using that content.
Among the issues highlighted by Hyman and Taylor in the piece:
- the lack of case law around terms of service violations means that the sharing of popular or trending content may appear lawful when it is not;
- the distinction between “personal” and “commercial” use is an important one with significant ramifications;
- content creators must be cognizant of rights of publicity when it comes to using the name, image and likeness (NIL) of another person; and
- content created specifically for use on one platform may not necessarily be used on another platform, or in offline settings.
In closing, Hyman and Taylor argue that “it is important for content creators and brands to weigh legal risks when creating content,” and that it is a best practice “to review each social media platform’s TOS to determine whether your content complies with the policy.”
Read the full article on AdAge here (free subscription required).
