Due diligence is a critical part of any acquisition. A company looking to buy an asset (any property a business owns) will typically conduct due diligence prior to acquiring the asset in order to determine whether the asset it wishes to buy has been characterized correctly by the Seller. This process consists of a thorough review of all aspects related to the target asset. While it may seem like a tedious task to complete, due diligence is an important part of the acquisition process because it essentially provides the buyer with a complete evaluation of information relating to the asset so as to protect against any misrepresentations made by the Seller.  By engaging in sufficient due diligence, companies can further protect themselves from entering into bad deals.
 
Due diligence can be completed on the acquisition of any asset, including social media accounts. ​​Unfortunately, it can be difficult to determine the ownership rights of digital assets if a company has not instituted the proper protections for this property. Before acquiring these types of digital assets, purchasers should consider a number points in order to make sure they are not getting swindled.
 
Here are several aspects to consider when evaluating whether to acquire a target’s social media accounts:

• Who created these account(s)?
  • An individual?
  • An independent contractor?
  • An employee of a company?
• Is there a contract with the account creator?
  • Does that contract properly convey all rights to the account(s), AND its contents?
  • Was the contract an employment agreement, and was the account created as part of the employee’s scope of work?
• If the account creator was an employee of a business, does the company’s employee handbook contain any social media policies?
• Do said policies convey ownership of account(s) created in furtherance of the company and the content on said account(s)?
• Who currently has access to the account(s)? Are any of the individuals a master user?
• Have the relevant statistics of the account(s) been artificially inflated?
  • Did the account holder buy fake followers?
  • Did the account holder create fake accounts to inflate its following total?
  • Have the account(s)’ interactions been fabricated to inflate its reach?
• Has the content posted on the account(s) violated any of the site’s rules?
  • Did the account holder have the rights to post all content pieces (i.e. clips, videos, music, etc.)?
  • Is any of the content unlawful, illegal, or does it promote violence?
  • Has the account holder received any notifications, warnings, or suspensions from the social media platform for violating its Terms of Use and/or rules?
  • Has the account holder received any notices or letters regarding any alleged infringement?
• Has the account and/or its content ever been subject to, or in any way related to, any executed contracts?
  • Has the account posted any sponsored posts?
    • Does the account holder own the rights to those posts and/or the content contained in the post?
    • Were thes e posts compliant with the FTC guidelines for sponsored advertising posts?
    • Were the posts compliant with site rules regarding sponsored posts?
• Assess whether there are any transfer restrictions relating to the account.
  • Does the account holder have the full authority to transfer the account?
  • Are there any third party agreements limiting transfer?
  • Does the social media platform allow for the transfer of the account to another party?

 
Generally, if you believe there are no issues with the target asset after completing this checklist, it is likely that the seller made accurate representations regarding the asset, and you may be more comfortable in proceeding with the deal. However, if any red flags appear along the way, you may want to take a more cautious approach and ask follow-up questions in order to understand the situation. Nonetheless, businesses should keep in mind that each acquisition is different and there are a number of additional factors that should be considered when entering into this type of agreement. If you need any assistance in performing due diligence and completing your acquisition, please feel free to contact us.

Disclaimers abound on social media profiles, but to what effect?  One of the most frequently used disclaimers is “words are my own and do not reflect my employer,” or something to that effect.  Such language is added to social media profiles for two reasons:

• An employer requires the phrase in its employees’ profiles
• The employee believes that inserting such language will keep an employer from legally firing them for posting questionable content

The supposed purpose for adopting such language in a social media profile is to distance one’s personal comments from their employer and/or affiliates for legal considerations.  However, this disclaimer, and its many variations, has no legal effect.

When businesses require employees to use disclaimers, the business believes that such language may protect the business from any brand damage the employee may cause, and possibly even protect the business from being legally liable for the employee’s comments.  However, both of those notions are false assumptions.  Businesses are not insulated from brand damage because their employee makes it clear that he/she is expressing their personal opinions.  If the employer can be determined from the social media account, then the employee is inextricably linked with the employer.  This linkage is the reason why businesses can face public backlash for their employee’s actions on social media, which generally results in the employee being fired.

There have been numerous instances where an employee’s conduct on social media has resulted in public backlash against the company.  For instance, the Brookfield Zoo in Illinois was recently inundated with complaints of an employee’s allegedly racist social media post.  As a result, the zoo terminated the employee and issued a statement hoping that guests would not “let the actions of one individual overshadow the longstanding good work” that the zoo has accomplished.  The zoo’s statement reflects the notion that it understood that its brand may have been damaged by the actions of a single employee.  Additionally, nothing in this example would change if the employee included disclaimer language in her profile.  Despite the disclaimer, patrons of the zoo would still complain to management about the employee’s statement, the zoo would still terminate the employee, and it would issue exactly the same statement.

Further, despite a profile containing a disclaimer, an employer may still be liable for the employee’s conduct on social media.  Liability can attach to an employer when the employer had the right, ability, and duty to control the activities of their offending employee.  Given the prevalence of social media apps for phones, it is not uncommon for employees to utilize their personal social media accounts in the workplace.  However, it is the employer’s duty to police the workplace.  Therefore, if the employee posts inappropriate content while at work, or if the post contains sensitive work related information, it may be more likely that liability would still attach to the employer.

Additionally, the notion that an employee cannot be legally fired for their social media posts because a disclaimer was present is false.  Despite a disclaimer, employees can be fired for the content they post on social media.  There are only a few circumstances where a social media post cannot result in an employee’s termination.  State and Federal discrimination laws protect employees from being fired on the basis of the race, national origin, sex, and other categories.  Therefore, an employer cannot terminate an employee for a social media post on the basis of those categories.  Further, an employer cannot terminate an employee for engaging in protected concerted activity.  Pursuant to the National Labor Relations Board, concerted activity occurs when two or more employees take action for their mutual protection regarding the terms or conditions of their employment.  This can be as simple as multiple employees discussing work related issues such as pay or safety concerns.  Such conversations occurring on a social media platform have been recognized by the NLRB to constitute protected activity as well, and thus cannot be the basis to terminate an employee.

Understanding that social media is a growing area fraught with risk for a brand, and with no help being offered by disclaimers, businesses are now beginning to monitor their employees’ social media accounts.  Although some may perceive this monitoring as a needless exercise to police employees’ private lives, it is the only way for a business to be proactive regarding inappropriate content that is posted which has the potential to damage its brand.  If the business were able to catch an inappropriate post before it went viral, the business can take steps to protect itself from potential brand damage.  Unfortunately, such monitoring is necessary because disclaimers do not offer the protections they are believed to have.


(This post initially appeared on Esports Entrepreneur, a website dedicated to providing the necessary resources and content to help create profitable and sustainable eSports businesses)

Social Media and athletes have a tricky relationship. On one hand, interacting with fans and other athletes on social media can have a positive effect on the athlete's brand. On the other hand, misstatements, insults, or inflammatory comments can cause immense harm for the athlete's brand. This damage can be especially evident if a company the athlete endorses determines the statement to violate a morals clause in their contract. In some cases, negative social media posts may impact an individual's career as a professional athlete before it even starts. 

It has been standard practice for college athletes to have their social media accounts monitored by their team. College sports teams also monitor/review the social media accounts of prospective athletes. 

Three years ago, an unnamed college coach was recruiting two basketball prospects from Fairport High School. However, upon reviewing the recruits' social media accounts, the college coach determined that one of the recruits did not represent the College's values and standards. Subsequently, the college coach ceased recruiting the athlete. Interestingly, the recruit's Twitter was not filled with illegal activity, but contained frequent use of vulgar language and made several references to partying. Those posts were enough to cost the young man a potential scholarship.

Undoubtedly, athletes are public figures. In the hyperconnected world of today, aspiring professional athletes must be prepared to act as professionals at an early age. Young athletes must realize/be instructed that anything they have ever posted on a social media account is available to anyone that wants to dig deep enough. Here are some tips for aspiring, young athletes to easily control their public image by navigating the minefield of social media:

• Delete old accounts- If a social media account is not being used, it should be deleted. Simply put, what good is keeping a social media account with potentially damaging posts?
• Clean up current accounts- Yes, it may take a large amount of time, but go through all of the posts on active accounts. All questionable content should be deleted. 
• Don't use social media- There are many athletes who find social media, and its proper use, to be too much work. Just ensure that any account not in use is deleted. It should be noted that not using social media will not enhance an athlete's brand either.
• The Grandma rule- Before every post, an athlete should take a second to think "Would I want my Grandma to see this?" The athlete's theoretical Grandma would also understand slang, so no words would be lost on her. If the post is not something an athlete would show their Grandma, then it should not be posted. Similarly, this means that athletes should post the things they would want their Grandma to see. That means posting about happy instances, good times (that are substance free), and good works the athlete does for others. Grandmas and coaches are very alike. 

Social media can be tricky for the young athlete, but following some of these best practices will help enhance their budding brand as they progress in their careers.

Protecting one's intellectual property online can seem like an onerous task. This is especially the case with copyrighted content. However, content creators can help protect their copyrights by taking several actions.

Keep in mind that according to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works."  Notably, copyrights protect the expression of ideas, and not the ideas themselves. Additionally, copyrights attach immediately when the work is fixed in some form of tangible medium of expression (like a book, recording, painting, blog post, etc.) Although it is not necessary to register a copyright for protections to attach, a registered copyright has additional benefits should someone infringe. For more information on what a copyright is, see my earlier post here.

So what steps can you take to protect your creative, copyrighted works? 

Place a copyright notice on your work. In the context of protecting copyrights online, you can place a copyright notice alongside your work. This need not be complicated, and can simply state "Copyright (your business' name) 2014. All Rights Reserved." Although this isn't necessary, it informs potential infringers that you are aware of your rights with respect to the work, potentially discouraging them from infringing. For photos, this can be effectively accomplished by watermarking your images. 

Define others' rights in utilizing your work. Create a policy (and place a link to it on your site) that tightly defines how people may use your content with and without your permission. Effectively, this creates a route for potential infringers to utilize your work in a manner that respects your copyrights by offering them a limited license under terms you decide.  Even better, these terms establish how other people can freely advertise your work.

Consider registering your copyright. Some content, especially if used as a means of generating income, may warrant a Federal Copyright Registration. This is purely optional, although there are benefits to registering a copyright which primarily manifest during litigation. Some of the added benefits of registration include: the ability to sue for attorney's fees; the ability to sue for statutory damages (which is easier to prove than actual damages); a presumption (after 5 years) that the copyright is valid and all facts in its registration are true;  the registration itself constitutes notice that said content is copyrighted. Additionally, registration may allow you to transfer copyrights easier. 

Find out if your copyrighted material is being infringed upon. Once you are aware that your work is being infringed upon, you can take steps to have the infringing work taken down, or at least attribute credit to you, whichever you deem appropriate. There are many different tools you can use to find out if your works have been infringed upon. Not surprisingly, a Google search is a great place to start as the search engine has both text and image search capabilities. Sound recordings are much more difficult to police as there can be multiple copyrighted elements, in addition to the technical difficulties of searching audio recordings. 

Contact the infringer. Generally, there is some manner available to contact someone that improperly posts your content, be it via email, comment, or message. Utilize whatever method you believe to best contact the infringer and request that they remove your content, or point them in the direction of your use policy and request that they abide. If they fail to remove the content or fail to adhere to the policy, locate the website's ISP information. To do so, you can use this site or this site. Once you have the ISP's information, send a Takedown notice (free samples can be easily found through a Google search) to the ISP, which states that one of the sites it is hosting contains infringing material. The Digital Milennium Copyright Act allows for an ISP to be held liable for hosting infringing content. Generally, once the ISP is notified that they are hosting an infringing work, the website will be taken down so the ISP can avoid liability. 

When to hire an attorney. If the ISP fails to remove the content, or take down the website, then you may wish to hire an attorney to prosecute your claim of intellectual property infringement. If you have yet to register the copyright of your protected content, then you may have to do so before any litigation may commence. 

Following these steps will help you protect your copyrighted content online, allowing you to only worry about creating more content to share with the world. 

Social media sites like Facebook, Twitter, and Instagram have pervaded every aspect of modern society. Not surprisingly, businesses have (and should have) utilized social media to increase their brand recognition and connect with their consumers. However, social media use for businesses can be risky. Unlike personal profiles, business profiles tend to have several users who can add content. Allowing multiple people to post for a business profile increases the business' risk of inappropriate use of its page. Simply put, no business wants an unhappy employee to be able to post on their social media pages. A single inappropriate post (even if well-intended) can quickly become viral on the internet and damage the business' brand. 

Click here for a few examples of social media blunders by well-known brands

In order for a brand to avoid similar scenarios and promote itself in the best light possible, businesses should have a social media policy. Such a policy can establish who has access to posting content, guidelines for appropriate posts and replies, how frequent posts may be made, and potential repercussions for violating the policy. Social media policies may also establish rules by which employees must abide in discussing the business or brand on their personal pages. 

By establishing a set of rules by which employees must abide when engaging in social media on behalf of the company, the company can effectively limit its risk and avoid unintentional mistakes which may hurt the business. Unfortunately, the only way to avoid the malicious, intentional, social media postings is for a business to select employees it deems responsible and consistently reevaluate the employees' access. 

Nothing can completely insulate a business from social media mistakes. However, social media policies can help avoid unintentional mistakes and create a unified voice for the brand.