Your IM Legal Questions -Part III

mont7071

mont7071

WF Premium Member
Feb 10, 2009
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Portland, OR USA
Since what little legal client work I do has been boring contracts and tax stuff lately, and all my campaigns are pretty much set for the month, I decided I'd open it up for another WF round of your legal questions about Internet Marketing and the Law.

As before, same rules apply. Check here then here for those rules AND to see if your question has already been asked and answered.

General legal questions only please, you probably know the rules by now, so fire away.....

*Anything I say is just one attorney's opinion. Nothing should be construed as official legal advice, nor create an attorney/client relationship.*
 
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Is there any case law on: how prominent is prominent enough for billing terms, where must they appear in the checkout process (page 3 of a six step process, then not again, i saw recently), etc.
 
Advertiser A says "Buy our stuff. Don't trust the competition, they <insert negative false statement here>."

The statement is false, but Advertiser B hasn't been specifically named. However, Advertiser B is the only competition. Does Advertiser B have a case?
 
This one got sorta mulled/skipped over in the last thread. What's the deal with using the likeness of another person (particularly a dead person) in something?

Can I have a vector art picture of Elvis made and sell music with it in my ads? Can I use a picture of Billy Mays on my business cards? etc. How about Thomas Jefferson? Is there an expiration date on when your "likeness" stops being property of your estate?
 
Refrozen said:
This one got sorta mulled/skipped over in the last thread. What's the deal with using the likeness of another person (particularly a dead person) in something?

Can I have a vector art picture of Elvis made and sell music with it in my ads? Can I use a picture of Billy Mays on my business cards? etc. How about Thomas Jefferson? Is there an expiration date on when your "likeness" stops being property of your estate?
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I might be wrong, but in one of the other thread I think the example was michael jackson and it was said 75-100 years before you can use likeness.
 
How big of a deal is it to use Obama's image in ads? I've seen plenty of large edu and financial companies do it, so I'm assuming theres presidential images that are public domain?
 
high risk said:
Is there any case law on: how prominent is prominent enough for billing terms, where must they appear in the checkout process (page 3 of a six step process, then not again, i saw recently), etc.
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Basically none, mostly because for something to become published caselaw, it is either an appellate, or supreme (state or federal) case. Most of the types of "arguments" about what constitutes these cases are solved at a much earlier level, either through a civil settlement or lower court ruling in the case of 2 private properties, or if its a gov't vs. private party case (e.g. FTC or FDA issue) then its largely going to be done through a consent decree. Add to that the fact that the new FTC guidelines on this stuff are merely that, guidelines, I don't think you are going to see a clear-cut answer that sheds light on this important issue any time soon, so everything remains in a murky, case-by-case basis.
 
ZeroOne said:
How big of a deal is it to use Obama's image in ads? I've seen plenty of large edu and financial companies do it, so I'm assuming theres presidential images that are public domain?
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Political people have less of a "protection" in their image then the average citizen, even a Nobody walking down the street, so from that perspective you are a lot safer using Obama's likeness in an ad vs. Oprah, or even your next door neighbor's kid for that matter.

The other side of the issue, however, is that if you are using their likeness to imply they support/agree with whatever you are saying (e.g. Obama ranks our acai colon blow 9000x better than the others) than you are risking a pretty evident FTC inquiry. You'll see that the smarter/more careful advertisers that use his likeness don't directly say that he supports/has anything to do with whatever product they are hussling, only that he e.g. "passed healthcare" (at which point they'll conveniently be selling something vaguely related to healthcare, if at all).

If you are just using a political person's likeness to grab attention (e.g. "Is Obama a good prez, vote yes or no and win a free whatever") that tends to be viewed more favorably than if you are implying that they endorse a particular product or idea.
 
HBZSoftware.com said:
Advertiser A says "Buy our stuff. Don't trust the competition, they <insert negative false statement here>."

The statement is false, but Advertiser B hasn't been specifically named. However, Advertiser B is the only competition. Does Advertiser B have a case?
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I've argued/defended this one before. I can say first-hand, Advertiser B may have grounds for a case, but its really hard for them to prove when Advertiser A never calls them out by name specifically. If Advertiser A referred to them directly, its a "gotcha" and a lot easier time for Advertiser B to sue them and make life difficult. The trick/key (assuming you are Advertiser A) is to say just enough that people may assume that Advertiser B is who you are talking shit about , but not enough to fully identify them to the point where they can nail you without spending a ton of money and time trying to "prove" that you were talking about them.

The less competitors there are in the market, the more careful Advertiser A has to be, just cuz you dont use their Name, but use their "tagline", graphic, too specific of an example , or basically something that makes it too obvious who you are talking about, that's asking for trouble.

Since almost all spaces have more than 2 advertisers (even if the others are small fry), its usually pretty easy for Advertiser A to fall back on "Hey, Advertiser B is just being sensitive, I wasn't talking about him, I was talking about some other random, unnamed competitors of both of us" ;)

Moral of the story, you can get away with alot when you don't specifically identify the "other guy" by name, and put the onus on him to prove otherwise, but tread lightly in making it too transparent who you are talking about, especialy if there are few competitors in the space.

Good Q.
 
mont7071 said:
Basically none, mostly because for something to become published caselaw, it is either an appellate, or supreme (state or federal) case. Most of the types of "arguments" about what constitutes these cases are solved at a much earlier level, either through a civil settlement or lower court ruling in the case of 2 private properties, or if its a gov't vs. private party case (e.g. FTC or FDA issue) then its largely going to be done through a consent decree. Add to that the fact that the new FTC guidelines on this stuff are merely that, guidelines, I don't think you are going to see a clear-cut answer that sheds light on this important issue any time soon, so everything remains in a murky, case-by-case basis.
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Agree with your post in its' entirety. The only analogue I could think of was a contract which has the introductory paragraph and signature lines on page 1, but the terms continue for another 20 pages.
 
mont -

If our Privacy Policy indicates we may sell/transfer user data for any legal and permissible reason, and our users must check "I agree to the Privacy Policy and Terms of Use" prior to registering their contact info on our website, is that enough disclosure?

We then pass user data to a list management firm.
 
invisible777 said:
mont -

If our Privacy Policy indicates we may sell/transfer user data for any legal and permissible reason, and our users must check "I agree to the Privacy Policy and Terms of Use" prior to registering their contact info on our website, is that enough disclosure?

We then pass user data to a list management firm.
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Its enough to keep you out of legal trouble under CAN-SPAM, if that's what you are asking. If they are a minor, there are some other nuances that can trip you up, but for the most part, as long as your privacy policy leaves you the "right" to sell/transfer any data, there isn't much of a legal claim they can bring against you for doing exactly that.
 
So let's say you aren't doing anything remotely shady and plan to pay your taxes like a normal citizen, but you believe the world and particularly the US could implode into a police/socialist state any day, how would you structure your company to GTFO/disappear with as little interruption in operations and cash flow as possible should it all go to hell?

Do you go off-shore for everything (hosting/registrar/banking/incorporation) What do you see as the most hassle free way to keep your assets protected in a SHTF scenario? While I don't need it now, or hopefully ever, I'd like a pictures-of-oprah pooping-acai-berries level of protection if I can do it without an insane amount of hassle.
 
fatmoocow said:
So let's say you aren't doing anything remotely shady and plan to pay your taxes like a normal citizen, but you believe the world and particularly the US could implode into a police/socialist state any day, how would you structure your company to GTFO/disappear with as little interruption in operations and cash flow as possible should it all go to hell?

Do you go off-shore for everything (hosting/registrar/banking/incorporation) What do you see as the most hassle free way to keep your assets protected in a SHTF scenario? While I don't need it now, or hopefully ever, I'd like a pictures-of-oprah pooping-acai-berries level of protection if I can do it without an insane amount of hassle.
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Assuming you already know you are still on the hook for U.S. taxes for at least 10 years, and you want to keep a U.S. passport...

Keep your current host, but mirror your site(s) on an offshore host as well, then just point your arecord with an EasyDNS-type tool, so that if your U.S. one goes down/shuts you off, you can repoint and be back up and running in about 1 hour.

Banking, there are a few options, though U.S. citizens are at a disadvantage, most overseas large/stable banks are leery of the long-reach of U.S. jurisdiction, and will naturally assume you are doing something shady. You can still get bank accounts in the Seychelles, Channel Islands, Bermuda, etc if you really know what you are doing. If you don't want to use/keep a U.S. passport, there are ways to buy a St. Kitts one relatively easily, which does make the banking side easier.

Shelf corps from any of a few dozen jurisdictions are a simple matter, and have the bonus of often being in warm sandy beach-type places if you want to be in the area, but its not a prerequisite. You can have these pre-formed, with a similar name to your US corp, and be ready to roll on pretty short notice.

Since avoiding taxes doesn't seem to be your concern, just an Armageddon-type meltdown of society as we know it, the question becomes: if the U.S. , being a comparatively stable capitalist nation, goes to hell in a handbasket, its a good bet that there aren't many safe places left in the world, so a lot of what would be the best approach now might not be the case in such a scenario.
 
mont, awesome welcome back!

I'm just wondering in general what you think about the Facebook Open Graph API. This is going to open a lot of "privacy" concerns for some people.

Have you read much into the user agreements and have any comments on things such as data/media ownership and use of peoples' personal data and e-mails? Do you plan on using it in your campaigns?
 
mont7071 said:
Since avoiding taxes doesn't seem to be your concern, just an Armageddon-type meltdown of society as we know it, the question becomes: if the U.S. , being a comparatively stable capitalist nation, goes to hell in a handbasket, its a good bet that there aren't many safe places left in the world, so a lot of what would be the best approach now might not be the case in such a scenario.
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Good point. Might be better off making a ton of money, buying a nice, secluded backup plot of secure land in Texas with satellite communications, get defensive handgun, rifle, and shotgun training, and have silver and gold coins on hand. :2gunsfiring_v1:
 
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