“In the next 10 years, I expect at least five billion people worldwide to own smartphones, giving every individual with such a phone instant access to the full power of the Internet, every moment of every day.” – Mark Andreessen
Several months ago, fashion house DKNY approached photographer Brandon Stanton, a New York street photographer who photographs some of the Big Apple’s interesting characters for his popular “Humans of New York” photo blog, wanting to purchase three hundred of his photographs to use in its storefronts across the globe.
Stanton, however, did not feel that DKNY’s offer of US$15 000, or US$50 per photograph, was a fair price for his work and declined the offer.
Some months later, in February 2013, a fan sent Stanton a photograph of a DKNY store in Bangkok and, lo and behold, the storefront was decorated with a number of his photographs.
Obviously unhappy about the use of his original copyright works without his knowledge, or any compensation for that matter, Stanton felt that he needed to address this infringement... but what to do...?
Instead of a barrage of legal letters and threats of copyright infringement litigation, which would, in the circumstances, have been appropriate, Stanton took a rather 21st century approach to the problem and, making a post on Facebook, asked his fans to “share” the post if they agreed that DKNY should, on account of this infringement, donate US$100 000 on his behalf to his local Young Man’s Christian Association (YMCA) in Brooklyn, New York.
Within only 5 hours, 28 907 people had shared Stanton’s post, standing testament to the reach of social networks and creating a potential PR storm that DKNY could not ignore.
In response, DKNY issued a formal apology, stating that the Bangkok store had mistakenly used the photographs, which had been included in an internal mock-up for the purpose of illustrating the direction of the intended Spring 2013 window visuals, and that US$25 000 would be pledged in Mr Stanton’s name to the YMCA.
Stanton posted on Facebook: “$25K will help a lot of kids at the YMCA... we are going to take them at their word that it was a mistake and be happy that this one had a happy ending”.
The legal issues aside, this matter holds a few valuable lessons for 21st century attorneys. In particular, the constantly evolving technological world and the way it affects how we communicate will, and is, changing the way we do business and the way we should advise clients.
Given the visual nature of the internet, and the rate at which information and images can be shared, this is particularly relevant in the field of intellectual property. The ability to utilise the internet to promote clients’ brands and copyright works, to gain publicity and to address issues of concern while, at the same time, gaining major public image “brownie points”, as Mr Stanton did, should be considered in formulating advice.
That being said, it is important to bear in mind that ill-advised Facebook posts could open up a legal can of worms for the person or entity making the post. In January 2013, in the matter of H v W, the South Gauteng High Court found that certain comments made on Facebook amounted to defamation. The facts and merits of that matter are distinguishable from those in Mr Stanton’s case and will not be set out here but the court’s finding that the applicant was defamed by the respondent on Facebook should not be overlooked when advising clients. “Litigation by Facebook” should therefore not be entered into lightly and seeking the advice of an attorney prior to turning to social media networks would be prudent. Mr Stanton, if defamation had been alleged, would, it is submitted, have been able to rely on the defence that his Facebook post amounted to “fair comment” in that it was based on facts expressly stated and proved to be true and was not motivated by malicious intent. Other cases may not be so straight forward.
The virtual world has also created many new forums in which intellectual property might be infringed and, as far as brand protection is concerned, these should be investigated. For example, persons or entities may create a “Facebook page” on which they promote their goods (which may include counterfeit goods) and services and, in some cases, misuse the trade marks or copyright of others. Owners of intellectual property should therefore keep an eye on these forums in order to prevent infringements which, with the reach of the internet, may have an extremely negative and widespread impact on brand exclusivity and intellectual property rights.
The power of social media, if we are to advise clients holistically, should not be forgotten and the importance of understanding the reach of the virtual world, and how it can impact on the business of our clients, is likely to have a great bearing on our effectiveness as modern legal advisors.