September 2021

On August 27, 2021, the federal Ninth Circuit Court of Appeals ruled in an international trademark dispute where U.S. jurisdiction hinged on Federal Rule of Civil Procedure 4(k)(2).  Reversing the trial court, the Ninth Circuit ruled that personal jurisdiction existed over an Australian skin care product company, based in part on that company’s actions on social media.  (Ayla, LLC v. Alya Skin Pty. Ltd., No. 20-16214,  — F.4th —- (Aug. 27, 2021) (2021 WL 3823624).)

Twitter is testing a new safety feature aimed at reducing unwanted interactions. As explained in a Twitter Safety blog on 1 September 2021, Safety Mode temporarily blocks accounts (Author Accounts) found by Twitter’s artificial intelligence (AI) to be…

The Southern District of New York recently considered whether the unlicensed embedding of a video originally posted to a social media platform constituted copyright infringement. The case, Nicklen v. Sinclair Broadcast Group, Inc., et al., No. 20-10300 (S.D.N.Y. July 30, 2021), concerned the re-posting of a copyrighted video of a starving polar bear, taken by Paul Nicklen and posted to his social media accounts.  After Nicklen posted the video, it went viral. Sinclair Broadcasting wrote an article about the video, embedding in the article the Nicklen video. As a result of the embedding a reader of the article would view a still image from the Nicklen video regardless of whether the reader clicked to play the video. Nicklen claimed that the display of the still image from the Nicklen video infringed the copyright in the video. Sinclair Broadcasting filed a motion to dismiss claiming that the embedding was allowed under the so-called “server rule” or, in the alternative, constituted fair use. Judge Jed Rakoff denied the motion to dismiss rejecting the server rule and declining to consider the fair use defense at this early stage of the case.

Social media contests, sweepstakes, and giveaways have grown increasingly popular in the past few years and have become a common marketing strategy for businesses. From “like and share this post” to “tag five friends for extra entries,” contests allow businesses to promote their brand, generate leads, and engage with current and new customers. While it may be fun and games for the entrants, businesses need to be mindful of the rules regulating promotional contests.