Advertisers Beware: Best Practices for Advertising in the Social Media Age

In today's digital age, social media advertising has become an indispensable tool for businesses looking to expand their reach and engage with their target audience. With platforms like Facebook, Instagram, and Spotify offering diverse advertising options, it's essential to employ best practices to maximize the impact of your campaigns while minimizing the risk of infringing the intellectual property rights of others. The current lawsuit between X (formerly Twitter) and major music publishers underscores the risks of using unauthorized materials on social media platforms. 

In this article, we will explore some key strategies for effective social media advertising across these platforms as well as steps to ensure your content doesn’t infringe the rights of others.

Before jumping on a trend and starting your campaign, it is critical that you understand the role intellectual property can play in any digital advertising campaign. Generally, there are two fields of IP that advertisers must consider: trademarks and copyrights. Trademarks are a word, logo, design, color, and sound that are used on or in conjunction of a good/service that indicates sources/origin (e.g. Coca-Cola, Nike swoosh). Copyrights are rights granted to a creator of any original work of authorship (e.g. an artist has copyrights over their paintings). Advertisers looking to use social media need to be keenly aware whether the material they seek to use is copyrighted or trademarked. If it is, advertisers need to ensure they get the proper license (including a license with the proper scope with regard to subject matter, breadth of social media platforms, and time) to use the copyrighted or trademarked media.

For example, TikTok is a great social media platform for reaching Gen Z consumers. Approximately 78% of TikTokers use the app for “funny or entertaining” content so any savvy advertiser will need to keep up with trends. This includes playing popular music or taking advantage of popular dance trends to create compelling media. However, advertisers who fail to obtain proper licenses yet still use copyrighted or trademarked materials can have their ads taken down. Advertisers must also familiarize themselves with the advertising policies and guidelines of the various platforms as well. Failure to comply can result in ad rejection or account suspension.

Additionally, advertisers must also be careful when selecting influencers to market their products via social media. Advertisers should include indemnity provisions in their affiliate marketing campaign contracts to avoid liability for influencer's actions including any copyright violations. Advertisers should also ensure the influencer is informed of restrictions that may apply to industry advertising. Lastly, advertisers must make sure that all their paid advertisements are disclosed or they will risk being fined by the Federal Trade Commission.

In sum, social media advertising can be a boon to any advertiser’s business when done properly. Advertisers should take steps to ensure they minimize risks of IP infringement. Such preventative steps include: documenting authorization/licenses to use another’s work; having robust agreements with influencers to protect the advertiser’s rights; learning the policies for any social media platform they will advertise on; and following various social media accounts to ensure the advertiser’s business is not being misrepresented or having their IP misappropriated.