Brand Equity in the Age of UGC: "Hey Dude, Don't Be a Dick"

In the SXSW 2009 session "How to Protect Your Brand Without Being a Jerk," panelists cautioned brands to police trademark violation while still protecting PR by practicing flexibility and communication when it comes to new media law.

In the age of user-generated content, sharing, remixing, mashing-up, and even simply referring to copyrighted content has landed both brands and users in a world of hurt.

What panelists called a "folk understanding" of the Digital Millenium Copyright Act and traditional media law have given rise to large-corporate paranoia in the gray areas of new media content publication. Misunderstandings of Internet culture as well as trademark infringement have lead to heavy-handed policing of content and trademark use, often leading to online PR debacles.

"You become known as the brand that sues," said panelist Oren Bitan of HIQI Media.

Panelists also included Danny O'Brien of the Electronic Frontier Foundation (which organization legally defended the family of a baby who was shown in a YouTube video dancing to a Prince song), Eric Steuer of Creative Commons, and Elena Paul of Volunteer Lawyers for the Arts.

If someone is pirating your intellectual property, said Paul, "Suing is at the end of a very long line of options."

O'Brien added, "The important thing is to realize there are a number of steps before lawyering up to protect your brand. Often, conversation is enough. You're not obliged to protect your copyright to keep yourself from losing it."

O'Brien continued that the question becomes "whether you should strongly, aggressively protect a trademark or risk losing it. The biggest challenge to a brand isn't people genericising it. A lot of standard legal practices don't apply here, otherwise we'd be asking you to say 'Twitter TM'.

"The biggest challenge you have is obscurity."

Steuer suggested trademark and copyright owners ask themselves, "Is this the kind of sharing you're benefiting from? Often, it is."

O'Brien made an important distinction between trademark violation and fair use.

"There is confusion between the trademark and discussing the mark itself for description or criticism. You don't have to ask permission to say 'Wal Mart sucks,' and they can't sue you for saying 'Wal Mart sucks.' No one sees the millions of cases where people discuss and come to amicable agreements; brands believe they have to act like a bull in a china shop."

Bitan agreed, saying "Flexibility in policing is lacking in large companies. It's important to monitor your mark; journalistic discussion is one thing and putting [trademarked] products into the marketplace is another."

The panel gave an interesting example in discussing Second Life's issuing a press release giving license to First Life, a site that (depending on perspective) significantly ripped off or riffed off Second Life's brand. The panel universally agreed that this was a smart move, showing an understanding of online culture and a healthy sense of humor on the part of the brand's attorneys.

O'Brien concluded, "Trademark is not a question of ownership; it's not something that's precious. Ultimately, it's there to try to prevent fraud."

In addition to this lengthy discussion of trademark issues, concerns over copyrighted material and proper procedures for filing DMCA takedown notices were discussed.

The most important takeaway for brands experiencing consternation over trademark and content use, the panelists concluded, is to gain a full and thorough understanding of how authorship and ownership apply to different parts of intellectual property and to generally pursue conversation before legal action.