Protecting Intellectual Property (IP) When Engaging In Viral Marketing (United States)

Any input is greatly appreciated.

Response #1: It seems like your main objectives would be to require attribution to your publication (take a look at some open source software licenses) and to withhold rights to make derivative works.¹

 

Response #2: The only change that I would make is deleting the first sentence. The rest is okay to keep, including the liability disclaimer. Yes, insert the copyright notice. There is no difference in the notice depending on the publication medium.²

 

Response #3: Creative Commons has already written standardized licenses for sharing copyrighted works under the terms you suggest. As standardized licenses, I think they would go over better with the average sharer than a customized legal notice. https://creativecommons.org/share-your-work/ ³

 

Response #4: Do you expect people to copy the content of the articles/magazine or just share the link? Perhaps a little more research on this is needed, but based on some basic research I did a while back, most courts are finding that merely linking to a webpage is not sufficient to cause copyright infringement (See Linking to Copyrighted Materials). You still may want to soften the language in your current notice, as the readers who access the link will probably be "reproducing" a copy for their review, but just wanted to mention this point.⁴

 

Response #5: Apologies in advance for any perceived stridency on my part, but I think perhaps that you should take a step back and reconsider your objectives and those of your organization. According to your post, you wish to "encourage sharing" of the publication while "protecting the organization's intellectual property." In general, what you are calling copyright notice does not really serve to protect the organization's IP and probably discourages sharing because it conveys the impression that the organization is unreasonable in asserting legal rights.

 

With that in mind, let's take a look at each sentence of the current statement and ask whether it contributes to either goal.

1. No part of this publication may be reproduced, stored in any retrieval system, or transmitted, in any form or by any means, electronic, mechanical photocopying, recording or otherwise, without the prior written permission of the publisher.

To begin with, this plainly overstates the organization's copyright rights under the Copyright Act. Is it really your organization's position that no one can reproduce "any part" of the magazine without permission? Obviously, under the "fair use" doctrine, people are perfectly free to excerpt portions of your copyrighted material, with a view toward the four factors described in 17 U.S.C. § 107. Moreover, it is not clear whether, in fact, your magazine holds all copyright rights with respect to the material contained therein. Finally, if we are talking about Twitter and LinkedIn, the language (including reference to like "mechanical photocopying") suggests a lack in fine-tuning.

 

You should be asking yourself what sort of message this conveys to the third parties who you wish encourage to share the magazine. Many of them may see this as unreasonable and presumptuous, and assume that if they do share, they can expect a "cease and desist" letter from a lawyer. How about a simple "all rights reserved"?

 

Of course, there are publishers and broadcasters who use more elaborate messaging as to their rights, and you may feel that that this is necessary to place potential infringers on notice that a particular form of misappropriation may be actionable.

2. Other product and/or company names mentioned in this magazine may be trademarks or registered trademarks of their respective companies and are the sole property of their respective owners.

Is this provision really necessary? Would any reasonable consumer believe that your company is asserting trademark rights in any mark mentioned in a magazine article (if this is, in fact, the use)? Would any story constitute an unfair competition with respect to such mark? Are you unduly diluting trademark rights with any story?

3. {Insert Publication} is a publication of [corporation] and [corporation] shall not be liable, regardless of the cause, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or inauthenticity of, the information contained within this magazine."

I do not understand the legal need for this disclaimer. Obviously, the company is not liable for any inaccuracies - except to the extent that such inaccuracies would constitute defamation, which is a matter of law.

4. We make no representations, warranties, or guarantees as to the results obtained from the use of this information and shall not be liable for any third-party claims or losses of any kind, including lost profits and punitive damages.

Is there any reason that a reader would be thinking otherwise?

5. Printed in the U.S.A. All rights reserved. ISSN "Printed in USA" obviously only applies to the print version. "All rights reserved" is good and ISSN makes clear that the magazine is a "real" magazine.

Thus, on balance, you may want to consider a simple copyright notice indicating that your organization asserts rights to the magazine generally, and reserves all rights. Individual stories may be subject to separate copyright rights held by the authors, presumably those contributions have proper notice. Also, you may wish to also include trademark notice (either registered or common law) with respect to the name of the magazine.

I hope this helps. Again, my apologies if my comments seem impolite.⁵

Response #6: I second the comment on releasing under a Creative Commons license, in particular the one requiring that attribution to the copyright owner is maintained.⁶