Avoid Consumer-Generated Risks

10 Good Tips for You to Use to Protect Yourself and Your Clients

By Published on .

Brian Heidelberger
Brian Heidelberger is a partner in Winston & Strawn's Advertising and Promotional law practice.
So you want to use consumer-generated content, but you're scared of the risks involved? As an advertising and promotions lawyer, I understand your hesitation. The pundits have filled our heads with horror stories of the trouble consumers can get us in -- copyright and trademark infringement, contributory and vicarious liability, false advertising/unfair competition and other similar risks. Well, like any good lawyer, I can't promise you immunity from any of these threats. But I do have 10 good tips for you to use to protect yourself and your clients when using consumer-generated content 1.


You won't believe it, but the federal government actually has enacted laws to help you. The Digital Millennium Copyright Act has enacted a "takedown procedure." In general, it provides that a website owner won't be liable for damages for copyright infringement in the event that it takes certain steps to remove infringing materials upon a complaint. But the law requires you to follow specific procedures in order to be protected. Meanwhile, the Communications Decency Act provides broad immunity for those who maintain a public website, or even use a website, and publish another's statement. Under the CDA, you don't even need to take down content to be protected; there is simply protection in the fact that you are publishing another's statement via the web.


It's critical at the beginning stage of any consumer-generated-marketing plan to determine all the ways your company plans to use the content submitted. Obviously, the more widespread the intended uses are, the more protections you need. In addition, you need to clearly communicate to consumers your expectations and requirements. Statements such as "no copyrighted music allowed," "no identifiable persons may be included," or "no professionals may enter" should be disclosed, not just in your terms and conditions but prominently at the point of submission as well. This helps protect you and the consumer from liability, and when consumers know up front what they can and can't submit, you may get fewer submissions that you have to reject.


You should have your lawyer create terms that clarify the requirements for submitting content, include contractual protections, and otherwise meet state laws relating to contest and sweepstakes (to the extent necessary). Creating these terms will help to protect you from claims against the consumer who submitted the content, state and federal regulators surfing the web in search of lawbreakers, and other third parties whose rights you might have infringed.


Your legal terms can be considered a contract between you and the content submitter, but only if you disclose them to consumers in a way that legally binds them to the terms. Courts have said that for web terms to be binding on a consumer, the website must verify that the consumer is aware of the terms and affirmatively agrees to them. So at the very least, include the following statement above the "submit" button: "By submitting my entry, I agree that I have had the chance to review the rules and privacy policy and I agree to be bound by them." If you make the consumer scroll through your terms or affirmatively check a box before submitting content, all the better.


It's not always practical to allow only those 18 or older to submit material. So the question then becomes whether it's an acceptable risk to have some submitters who may not be bound to your terms. Well, if you're just posting entries among scores of other submissions on your website, and you don't plan to use them much after that, it may be an acceptable risk to accept submissions from children who won't necessarily be bound to your terms. On the other hand, if you're planning on taking submissions and using them in a highly visible way, such as airing them on the Super Bowl, then you probably want to make sure you have a binding agreement. You could allow minors to submit content and plan on getting a parental permission form signed.


Even with the strongest legal terms, if you don't enforce them, you may lose protection. So make sure you enforce your terms and refuse to post anything that is clearly an infringement or may otherwise violate the law. Its probably a good idea to err on the side of caution and if you are unsure whether something is illegal, don't post it.


There are technological filters you can use on your website to screen for profanity and hate messages. And while the technologies are not widespread yet, there are some that are being developed and used to identify potential copyright and other infringements. While these technologies may not be ready for prime time, keep checking for them, because they will probably be available sooner than you think.


If you are an advertiser, pass on as many risks as you can to your agencies via contract. You have the leverage over them and you may be able to get them to agree to this protection in your contract. If you are an agency, make sure the advertiser takes full responsibility for any claims related to consumer-generated content. Copyright infringement, trademark infringement and right of publicity all have potential damages that often far exceed what you will get paid for a single job, and it shouldn't be the agency's job to act as an insurance company for the advertiser in the risky world of consumer-generated content 2. And if you are lucky enough to pass on the risk, make sure you're added to the other party's insurance as a named insured, otherwise that indemnity may not be worth the paper it's written on.


"DO NOT TRY THIS AT HOME!" The legal reason you see disclaimers like this in movies and TV is that you're generally not liable for people who get hurt while copying dangerous acts you broadcast, unless you incited people to take those dangerous actions, or the harm that develops is reasonably foreseeable. Disclaimers like the one above attempt to negate that liability by telling people that, while we are showing something that is dangerous, we don't want you to do the same thing.


Now that consumers can submit pictures, videos and music, risk of infringement can come at you from several different angles. But it's much less likely consumers will submit infringing content if you provide them with a palette of creative materials from which they get to pick. So instead of risking having consumers submit infringing music, partner with a band or a record company and offer cleared music for consumers to add to video submissions. And instead of risking having consumers submitting infringing video, post your own video clips (or other public domain materials) that consumers can manipulate to make their submission.

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1. This 10-point plan is protected under federal copyright law as well as a pending patent. To the extent that you use any of these 10 points, you have hereby agreed to pay Brian Heidelberger royalties at his standard rate, which you will find written backwards and upside-down in the legal terms on his website. By continuing to read this article, you hereby agree to these terms. No purchase necessary. Void where prohibited.

2. Because we represent both agencies and advertisers, by reading this sentence you hereby agree not to use either of these arguments against me in a future negotiation.
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