User-generated content (UGC) is a valuable part of your company’s content marketing strategy, but it’s also full of potential legal pitfalls. When you’re aware of these liabilities, you’ll have a good grasp of what you can and cannot permit on your sites without risking copyright violations, trademark infringement damages or other legal issues.

The Digital Millennium Copyright Act and Safe Harbor

The 1998 Digital Millennium Copyright Act (DMCA) offers certain safeguards to companies regarding UGC under its Section 512 (c) if the business has registered an agent with the U.S. Copyright Office (USCO). The so-called “safe harbor” protects businesses that have content, videos, and photos uploaded to their sites. Your business may have already designated such an agent and so you’re not that concerned about UGC liability. However, the USCO introduced a new online system for agent designation in 2016, with a one-year grace period for enrollment that ended December 31, 2017. If your company did not register an agent under this new system, you are not in compliance and will lose safe harbor benefits. While the prior system did not require regular re-designation, the new system mandates re-designation every three years. On the plus side, enrolling in the online system is considerably cheaper than the old, paper methodology.

The Perils of Photos

A user who posts a photo to your company’s website or social media site only owns the copyright if they took the picture themselves. It’s the photographer who has the copyright. Even if the photographer has licensed the work under Creative Commons or a similar licensee, if the image contains people, they still have their right to privacy. It’s especially tricky with minors, who can’t legally give permission to have their photos used commercially. There’s also the fact that it’s often hard to tell if someone in their teens is still a minor or has reached 18 years of age.

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Lies and Liability

User-generated content may include statements about competitors that are simply not true. Whether or not your business may end up liable for this false advertising depends on how actively involved it was in any sort of related campaign. There have been lawsuits based on such incidents, but most have settled.
Then there’s hate speech or harassment. Under the Communications Decency Act, you aren’t necessarily liable for such nasty UGC. However, it’s not clear-cut. Much depends on the timeframe before the content is removed and whether one type of perceived hate speech is removed but not another. Yes, it’s complicated.

Takedown Notices

If you receive a takedown notice from a copyright holder, you must respond to it immediately. That also means all contact info on your sites must remain up-to-date. While you have some legal immunity if you respond promptly to a takedown notice, that vanishes if the copyright holder has no way to get in touch with you because the contact information is inaccurate or inoperative.

Contact an IP Professional

Each UGC situation is unique, so it’s often difficult to make the call on your own. An IP damages and valuation professional can help guide you through the UGC acceptable use thicket and help you avoid incurring economic damages.

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