Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

2024 Recap: Ten Lords A-Leaping!

Social Links: If the Suit Fits

Social Links: Age Verification, X Appeal, and the Great White North

Social Links: Fake Reviews, Real Rulings, and an Epic Fail

Lawrence W. Gallick on Toth v. Everly Well, Inc.

LinkedIN

A <a href="https://mashable.com/article/australia-laws-social-media-violence/" target="_blank" rel="noopener">new law in Australia</a> makes a social media company’s failure to remove “abhorrent violent material” from its platform punishable by significant fines. The law also states that the executives at social media companies who fail to remove the content could be sentenced to jail time.The European Parliament voted to approve the Copyright Directive, a directive that, although vaguely worded, affords copyright holders significant new protections online, and requires online platforms to police content more thoroughly than ever before. Find out exactly <a href="https://www.cnn.com/2019/03/26/tech/eu-copyright-article-13/index.html" target="_blank" rel="noopener">what impact industry advocates predict the law will have</a>, and how long it will be until it’s implemented.Learn how companies can <a href="https://www.law.com/2019/03/27/whats-next-biometrics-law-101-the-lawsuits-are-coming-does-a-new-copyright-law-mean-extinction-for-memes/?slreturn=20190305155141" target="_blank" rel="noopener">collect and use biometric data</a> without becoming an easy target for litigation, according to my co-editor Julie O’Neill and our colleague Max Phillip Zidel.As part of the <a href="https://www.sociallyawareblog.com/2018/03/06/ftc-quest-better-influencer-disclosure/" target="_blank" rel="noopener">FTC’s continuing efforts to ensure consumers are aware of when an online endorser has been compensated</a> in connection with an endorsement, <a href="https://www.mediapost.com/publications/article/334124/ftc-settles-with-snack-box-sender-over-online-revi.html" target="_blank" rel="noopener">the agency recently settled a complaint against a subscription service that allegedly offered its product for free</a> to consumers who posted positive online reviews.In the wake of <a href="https://www.entrepreneur.com/article/331719" target="_blank" rel="noopener">reports about social media influencers purchasing fake followers</a> and fake likes, as well as <a href="https://www.huffpost.com/entry/instagram-celebrity-sponsored-content-federal-law_n_5ca01661e4b0474c08cfbe22" target="_blank" rel="noopener">failing to adequately label endorsed content</a>, online celebrities are <a href="https://www.theguardian.com/media/2019/apr/05/its-genuine-you-know-why-the-online-influencer-industry-is-going-authentic" target="_blank" rel="noopener">embracing more relatable posts</a>, potentially in an effort to appear more trustworthy.To better compete with digital media platforms, the top 40 television markets in the United States will introduce a <a href="https://www.mediapost.com/publications/article/334255/new-broadcast-standard-poised-to-enable-interactiv.html?utm_source=newsletter&utm_medium=email&utm_content=headline&utm_campaign=113460&hashid=icw4eEcCBUZXM8pArHBIb_YN6sc" target="_blank" rel="noopener">broadcasting standard that will enable interactive and targeted advertising</a>.Snap Inc., whose Snapchat app currently excludes users younger than 13 but generally does not verify ages, has announced that it is <a href="https://www.bloomberg.com/news/articles/2019-03-19/snapchat-owner-says-it-may-tighten-controls-on-underage-users">working with British lawmakers to prevent underage children from signing up for its service</a>.What’s up with <a href="https://www.fool.com/investing/2019/04/10/4-questions-we-still-have-about-googles-new-gaming.aspx" target="_blank" rel="noopener">Google’s new streaming game platform</a>?A photographer is suing supermodel Gigi Hadid for copyright infringement for <a href="https://people.com/style/gigi-hadid-sued-again-posting-photo-without-permission/" target="_blank" rel="noopener">posting a photo of herself to Instagram</a>.<a href="https://www.shots.net/news/view/compose-a-jingle-for-breathable-boxer-briefs-and-win-10k" target="_blank" rel="noopener">Fruit of the Loom is holding a contest on Instagram</a> in search of the best jingle for their Breathable Boxer Briefs. See how much the underwear manufacturer promises to award the winning songwriter.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Social Links: An EU law to protect copyright owners online; collecting biometric data without running afoul of the law; influencers’ attempts to appear more authentic

A new law in Australia makes a social media company’s failure to remove “abhorrent violent material” from its platform punishable by significant fines. The law 

Social Links: An EU law to protect copyright owners online; collecting biometric data without running afoul of the law; influencers’ attempts to appear more authentic

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of communicating, as well as disseminating and using content. Sometimes, however, traditional legal standards apply to these new platforms in a straightforward manner. At least, that is what the court found in <a href="https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2018cv02027/350557/118/0.pdf?ts=1551783529" target="_blank" rel="noopener">Dancel v. Groupon, Inc.</a>, a putative class action against Groupon, Inc., alleging that Groupon’s use of images originally posted on the social media site Instagram violated users’ rights under the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62" target="_blank" rel="noopener">Illinois Right of Publicity Act</a> (IRPA).Groupon, a website that offers consumers deals on goods and services, built a widget intended to provide its users a window into businesses for which Groupon offered deals. The widget used Instagram’s API to find photos that Instagram users had taken at particular locations, and then displayed those images under the deals offered on Groupon’s own website.  When a visitor to the Groupon page hovered his or her mouse over the Instagram images, the Groupon user could see the username of the person who posted the photo on Instagram and an associated caption, if there was one.Dancel, who maintains an Instagram account with the username “meowchristine,” took a selfie of herself and her boyfriend in front of a restaurant and posted it on Instagram with a <a href="https://www.lifewire.com/define-tagging-3486207" target="_blank" rel="noopener">tag</a> noting the name of the restaurant. Groupon later displayed this photograph, among others, in connection with its deal for the same restaurant.Dancel moved to certify a class of all persons in the United States who maintained Instagram accounts and whose photographs were acquired and used on a Groupon webpage for an Illinois business, and a subclass of all members whose likeness appeared in any such photograph.  The court, however, denied Dancel’s motion for class certification pursuant to <a href="https://www.law.cornell.edu/rules/frcp/rule_23" target="_blank" rel="noopener">Federal Rule of Civil Procedure 23(b)(3)</a>, which requires a plaintiff seeking certification to demonstrate that common questions of law or fact predominate in the class (as opposed to questions affecting individual members of the class).According to the court, there was no single, common answer as to whether Instagram usernames could establish the identity of a particular person under the IRPA. The use of an “identity” under the IRPA requires that the use be sufficient to identify the person to a reasonable audience, but the court found that the answer to this question was an individual one, making the claim inappropriate for a class action.While this ruling is informative with respect to the relatively narrow issue of class actions alleging violations of the IRPA based on the use of social-media handles and related images in a commercial context, the result might be different in other jurisdictions or with slightly different facts. State law governs the right-of-publicity, and variations in state statutes and state courts’ interpretations of common law rights could impact the outcome of a similar claim in another jurisdiction. For example, in California the common law right of publicity broadly interprets “identity” to mean anything that evokes a person’s identity. In addition, the court in Dancer dismissed without explanation the idea that a photo of a person would clearly “identify” that person under the IRPA for purposes of class certification, though it is not obvious that another court would reach the same conclusion.Moreover, the court’s ruling concerned the issue of class certification, but did not directly address the merits of the underlying right of publicity claim itself. While class actions present potentially greater liability for companies, even individual claims can be problematic. Accordingly, companies that use user-generated content in connection with their social media posts should take note of this case for the questions it did not answer, and assess their use of such content with an eye to the potential for publicity-rights-related claims.More generally, Dancel is a good reminder that user-generated content posted on social media platforms is not necessarily freely available for use in other contexts. We saw this in the well-known case <a href="//casetext.com/case/agence-france-presse-v-morel" target="_blank" rel="noopener">AFP v. Morel</a>, in which a wire service and photo agency were held to have infringed the copyright in photographs taken from Twitter without the permission of the photographer who posted them. And another recent case, <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2017cv03144/473371/169/" target="_blank" rel="noopener">Goldman v. Breitbart News Network, LLC</a>, <a href="https://www.sociallyawareblog.com/2018/03/12/social-links-inline-linking-to-tweet-containing-photo-could-constitute-copyright-infringement-proposed-california-legislation-could-restrict-website-operators-efforts-to-have-minors-consent/" target="_blank" rel="noopener">held</a> that merely embedding a tweet (i.e., linking to a tweet) containing a photograph without the photographer’s permission constitutes infringement.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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What’s in a (User)Name?

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of com

What’s in a (User)Name?

DocuSign, Inc

enercity AG

SoftBank Vision Fund

TDK and its subsidiary EPCOS

Tele Columbus

United Internet/1&1

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Kristina has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus o

Kristina Ehle

Kristina Ehle has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus on technology-driven and IP-heavy transactions.

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Counsel

Stephan is counsel at Morrison Foerster’s German office in Berlin. He focuses on advising major German and international clients with regard to drafting and negotiating complex technology-related agreements and on matters concerning cloud computing, software, e/m-commerce, digital media, intellectual property rights, consumer rights, electronic communication, big data and cyber security requirements.

Stephan Kreß

Stephan is counsel at Morrison Foerster’s German office in Berlin. As a member of the technology transactions group, he focuses on advising major German and international clients with regard to drafting and negotiating complex technology-related agreements and on matters concerning cloud computing, software, e/m-commerce, digital media, intellectual property rights, consumer rights, electronic communication, big data and cyber security requirements.

Time to Hit Pause: Copyright Infringement on User Generated Platforms – When Is the Platform Provider Liable for Damages?

Time to Hit Pause: Copyright Infringement on User Generated Platforms – When Is the Platform Provider Liable for Damages?