Snapchat and ephemeral media: trademark law implications?

snapchat

This morning I learned that Vladimir Putin gifted Egypt a Kalashnikov rifle on a state visit through Washington Post on Snapchat. Interesting to me was the fact that I paid full attention to this short tidbit of information due to the simple fact that I had to hold my finger down to my phone’s screen in order to watch the 10 second video, under the threat that release of my finger would cut my video off and would need to be restarted again.

Snapchat is a messaging/media sharing app which I call an ephemeral content provider (“ECP”) because it requires users to press and hold their mobile screen in order to view and continue viewing content such as pictures and short videos, which then self-destruct like a tape from Mission Impossible. Limited time is another characteristic of Snapchat: media either self-deletes 10 seconds after content is opened or is available for unlimited viewing for a 24 hour window, set by the content creator. But self-destruction always occurs.

Think about what this means at a basic level for content: fuller attention is being paid to the content. I have to actively do something to access information, and if I don’t pay attention it will disappear. Snapchat has assured content providers that when people take in content its platform, they are likely paying active attention to the content. They’ve done this by introducing scarcity to the content through Snapchat’s touch/hold/watch/disappear process for users to view content. Did I mention that in four years Snapchat has attracted 100 million monthly active users (MAUs)? For a reference point, Facebook reported 350 million MAUs in 2014.

No, I haven’t become a spokesperson for Snapchat, but the magnitude of Snapchat and other contending ECPs must be explained because I’m assuming that some readers of this blog may not know what Snapchat is despite the large user base, and for good reason: it’s unknown to “older” people. The chief demographic of Snapchat users is 13-25, and even one 32-year-old professional  technology writer has admitted that trying to use Snapchat makes him feel old. To sum it up: “If Facebook is where your parents live, and Instagram and Twitter where millennials hang, Snapchat is where kids of Generation Z have gone to seek refuge.

All this hoopla aside, there are some interesting movements within the expansion ECPs which tug at some of the underpinnings to IP law, namely trademark law. One side effect of a consumer base accustomed to digesting self-deleting media is that advertising and brand infringement carry on as usual, maybe even more intensely, but the latter gains an advantage as a consequence disappearing tracks. Put in other words, the user base of an app like Snapchat is even more influenced by content, including infringing content, but the owners of infringed brands have less time to detect and react to infringement, and evidence gathering will also be more difficult. Imagine all increasing amount of subpoenas to access Snapchat data before data is deleted from their servers, a feature which is an express selling point of the Snapchat model.

There is support for the notion that people are paying attention to media distribution on Snapchat; some are even calling it a replacement of cable television. The “Discover” platform on Snapchat released January 27, 2015 as a designated portal for media content (in addition to the Snapchat “Stories” option). Discover launched with 11 publishers including CNN, The Daily Mail, and National Geographic, and the content operates similarly to the messaging app itself: stories are ephemeral. Content is published once a day and appear for one day only (in case you didn’t know, Snapchat messages are set to automatically delete after 3-10 seconds after viewed). Within Discover stories, more adspace is sold: BMW will advertise on CNN’s channel and T-mobile on The Daily Mail to name a few.  This is already in addition to Snapchat’s 24-hour ad campaigns which sell for an unwavering $750,000 (McDonald’s and Samsung are in).

As a trademark lawyer, I think there are many implications which ephemeral media will have with IP law. DMCA is rendered useless because ephemeral content providers take down content at regular, short intervals; discovering potential infringement requires more, real-time monitoring; and evidence gathering will be hampered because the time between detection and action will be abbreviated. These issues will arise as more ECPs develop. I’d love to hear what you think and/or why you disagree below.

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2 thoughts on “Snapchat and ephemeral media: trademark law implications?

  1. Cliff, Interesting premise and valid observations. In many ways, I think the whole concept of ephemeral social media mimics the manner in which the human mind processes and retains much of the information with which it is bombarded every day. You see it (or read it), you process it, and you (very likely) forget it. It will be interesting to see how trademark law tries to catch up with the catch up with the phenomenon. DCB

    Liked by 1 person

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