Wednesday, April 2, 2014

NISM Study Guide: Social Media Compliance, Governance, and Law

To get certified in Social Media Strategy through the National Institute for Social Media, I spent weeks researching compliance/governance issues that surround social media.  The following is a summary of what I found related to compliance/governance in social media, which I believe will be helpful to anyone who manages social media for business/commercial use and/or is taking the NISM exam:

FTC Guidelines

  • Truth in advertising - consumer protection laws apply to everyone who advertises or markets to consumers
  • Disclosure! "As with all truth in advertising laws, the consumer must know he or she is being sold to before reading something or taking action to purchase." -Sara Hawkins

The FTC on Endorsements and Testimonials -
The FTC gives guidelines that essentially point out that endorsements must reflect truth. A statement from the website guidelines says,  "Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser."

Endorsement = advertising message, endorser = someone other than the sponsoring company.
 "For purposes of this part, an endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser..." For more info. on the subject of endorsements/testimonials, visit this site.

To summarize the FTC Guidelines:

  • Endorsements must be truthful.
  • Testimonials must disclose typical results a consumer should expect, and companies can no longer use best-case scenarios or "results may vary."
  • Endorsements must provide disclosure of payment for advertisement or research funded/provided by the sponsoring company.  Disclosures must be clear and conspicuous.
  • Bloggers are often endorsers.  Payment = endorsement and must be disclosed.
  • Celebrity endorsements are a little bit different.  TV commercials and other platforms which are obviously paid endorsements do not require disclosure as the audience assumes the celebrity is being paid.  Other areas that are less clear, such as Twitter, Facebook, and other social media platforms, may require that a celebrity mentioning a product or service in a post must also disclose their relationship with the company of the product or service.
  • Expert testimonials must come from true experts and make claims that are generally accepted amongst other experts in their respective field.

Digital Millenium Copyright Act - DMCA

Taken from this article on Wikipedia: "The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet."

Fair Use

Another Wikipedia definition for you, FAIR USE is "a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test."

Want to know more about fair use? Visit this fact sheet on fair use by the US Copyright Office.

The fact sheet mentioned lists four determinants of fair use:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work
Examples of fair use:
  • Quotations or excerpts that are cited and used for illustration, such as in the beginning of this blog when I reference Sara Hawkins.
  • Quotation of short passages used for illustrations, such as the paragraphs I used from wikipedia.
  • Summary of an address or article with brief quotes in a news report.
  • Use in a parody of the content.
  • Reproduction by a library to replace a damaged copy.
  • Reproduction of a portion of a work for educational purposes.
  • Reproduction for legislative/judicial purposes.
  • Incidental reproduction in a broadcast of a work located at a scene being reported.

Copyright Law and Copyright Infringement gives a great summary of copyright law in this article.

What can be copyrighted?

  • Visual Arts
  • Literary Works
  • Sound Recordings
  • Audiovisual Works
  • Architectural Works
  • Sculptures
  • Dramatic Works
These works are automatically protected by copyright law and do not require that the author register their copyright.  As I mentioned earlier in this blog, the article above points out that copyrights protect the expression of an idea, not the idea itself.  

What rights are reserved for the author of the copyrighted work? Again, referring to the link above, this article, the website says:
To paraphrase, copyright law (outside of a few exceptions) generally provides the following exclusive rights:

  • The right to perform or display it publicly
  • The right to create an offshoot or sequel (called a derivative work)
  • The right to copy it
  • The right to distribute copies of it

This great article from the same website explains some examples of copyright infringement.

Some examples of copyright infringement were:

  • Using someone else’s material on YouTube without permission
  • Posting a picture (without permission) from Google Images
  • Publishing a translation of someone’s foreign work
Generally speaking, copyrights are good for the author's lifetime + 70 years.


The following is an excerpt from

What is a trademark or service mark?
• A trademark is generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.
• A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. Throughout this booklet, the terms “trademark” and “mark” refer to both trademarks and service marks.

Do trademarks, copyrights, and patents protect the same things?
No. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product." -For more information, view the full site here.

I also found a great publication called, "Trademark Issues in Social Media." Check out the publication HERE, written by Janet Garetto for Nixon Peabody.

Creative Commons Licenses

I was not familiar at all with this area of social media compliance.  The following excerpts are taken from

What our licenses do The Creative Commons copyright licenses and tools forge a balance inside the traditional “all rights reserved” setting that copyright law creates. Our tools give everyone from individual creators to large companies and institutions a simple, standardized way to grant copyright permissions to their creative work. The combination of our tools and our users is a vast and growing digital commons, a pool of content that can be copied, distributed, edited, remixed, and built upon, all within the boundaries of copyright law.
License design and rationale All Creative Commons licenses have many important features in common. Every license helps creators — we call them licensors if they use our tools — retain copyright while allowing others to copy, distribute, and make some uses of their work — at least non-commercially... A Creative Commons licensor answers a few simple questions on the path to choosing a license — first, do I want to allow commercial use or not, and then second, do I want to allow derivative works or not?...
Lastly, this wikipedia article explains Creative Commons Licenses in the following way, "A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work. A CC license is used when an author wants to give people the right to share, use and build upon a work that they have created. CC provides an author flexibility (for example, they might choose to allow only non-commercial uses of their own work) and protects the people who use or redistribute an author's work, so they don’t have to worry about copyright infringement, as long as they abide by the conditions that are specified in the license by which the author distributes the work. There are several types of CC licenses. The licenses differ by several combinations that condition the terms of distribution."

If you are studying for the NISM exam, I hope this helps!  Don't forget to read through the handbook and know ALL of the sections thoroughly.  Good luck!

Thanks for reading.
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