Pitfalls of Social Media

We all know that social media can be a powerful tool.  It’s no accident that successful companies and nonprofits alike all have Twitter accounts, Facebook pages and Instagram what-ever-you-call-thems.  However, there are pitfalls to social media as well.  How many times have you read about a celebrity or a company that posted something or tweeted something and then removed it later?  Companies have been sued over posts that were tweeted (Duane Reed, a pharmacy in NY had a lawsuit filed against it, asking for $6 million in damages, for posting a picture of an actress without her permission).  Demands to do things, or not do things, are rampant and all over the web – and they are related to things people tweeted or posted.  Bad publicity seems much easier to get than good publicity when you have social media accounts.  Why is this?  Because social media is a virtual minefield.  Regardless of the American “free speech” arguments, people’s opinions seem to flow freer on the web, the audience is unlimited on the web, and people take the impersonal comments very personally.  So, what to do?

There are a few important things to remember about using social media.  And, as a studio owner affiliated with the WTSDA, there are certain legal requirements that you should keep in mind before flinging a sheep at someone on facebook or tweeting about your favorite Far Side cartoon depicting a clever martial arts theme.

1.  Copyright and trademark infringement.  Social Media, specifically the act of “sharing” has made the idea of copyright or trademark infringement almost inconceivable to most people.  But yes, when you post that cartoon you love showing a clever play on breaking, that video with the excellent sword demonstration, that photo someone else took of a celebrity executing an excellent side kick or you taped your class doing a hyung with Rocky music blaring in the background, you may have just violated someone’s intellectual property rights.  Merely noting the source doesn’t get you out of hot water either.  There is something called the “fair use doctrine” but one factor is whether the use is of a commercial nature and if you own a for-profit school, you probably can’t claim that the use wasn’t for commercial reasons.  (For more on the Fair Use Doctrine, click here.)  Please, please take this one seriously.  The WTSDA has, in the past, received “cease-and desist” notices for content that was on WTSDA schools’ websites.  The WTSDA didn’t approve of the post, or make the post, but because the WTSDA logo is on the page, the WTSDA got the notice.  If you don’t have the right to use the item(s), don’t post them!!!  If you are unsure whether you have the right, you probably don’t.  

2. Fundraising.  If you are soliciting money for various causes, even non-profit ones, you may trigger the need for the charity you are fundraising on behalf of to register in your state or report on your activities.

3. Foreign jurisdiction (state) qualification to do business.  If you are considered “doing business in” a particular jurisdiction, you may need to register in that jurisdiction as a foreign corporation.  Each state has it’s own definition of doing business.  You should check with the secretary of state (or equivalent) in any jurisdiction you hold events or target clients.

4.  Volunteers, independent contractors, employees, etc. – statements they make (including stupid posts or pictures) can, and are often, attributed to you if they are done on our pages/accounts.  You can be responsible and liable for those statements.  Only those with the requisite authority and sound business judgment should be posting for your school.  Likewise, please, please, please do not claim to be posting something on behalf of the WTSDA or WTSDF.  All WTSDA and WTSDF items are to be handled only through approved and sanctioned OFFICIAL accounts and pages.  If you are not sure whether your page/account is official (and may make statements on behalf of the WTSDA and/or WTSDF), it probably isn’t and you should talk to HQ.

5.  Confidentiality.  There are privacy laws in many jurisdictions.  You should not use social media to divulge private or confidential information.  Once something is posted on the internet, it NEVER truly goes away.  You can delete a post, but others may have records and it may be sitting in someone’s cache some where. Safe rule of thumb:  ask yourself, do you care if the whole entire world sees what you are about to post?  Will you care in 10 years if someone pulls it out and says, “do you remember when you posted…?”  If the answer to either is yes, don’t post it!

6.  Other laws.  You need to be aware of a number of different types of laws to ensure you are violating any of them.  There are rules regarding lobbying and political activities for agents of nonprofits.  WTSDA affiliates should not be performing lobbying or political activities that may look like they are tied to the WTSDA/WTSDF.

7.  Ownership of the social medial accounts.  If you represent a region (that is, if you are a Regional Director) or the committee chair, please remember that those internal groups are not legal entities in and of themselves.  Each region is merely a way for the internal operations of the WTSDA to organize and break management into manageable groups.  If you establish a Regional Facebook page, that facebook account “belongs” to the WTSDA, not you as regional director and not “the region”.  The same may be said for regional webpages, instagram accounts, linkedin profiles, etc.  As a result, before posting or commenting (whatever) you should think about the impact the information you are posting could have not only to the region but on the WTSDA as a whole.  If, when you ask “is this information appropriate for the WTSDA to be stating/sharing (etc.)?”  you aren’t getting a resounding yes, don’t do it!

8.  Tax Implications.  The WTSDA and WTSDF both are tax-exempt entities and there are actions and activities that could impact that status.  Form the IRS website:  “To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. In addition, it may not be an action organization, i.e., it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.”  Certain activities may jeopardize the status.  If there are any questions about this – please contact the LAC or WTSDA Treasurer.

Bottom line:  Think before you post.  Remember, once it’s on the internet, you can’t “take it back” and it can’t be “unsaid”.

Forms, Forms, Forms!

No, I don’t mean Hyung.  I have posted a few forms that the LAC often gets asked to provide.  Some are WTSDA forms (such as the incident report that ALL regions should be using and submitting to WTSDA HQ, in accordance with the instructions) while others are samples that the LAC often gets asked to provide.

Please keep in mind, the samples are not jurisdiction specific and there may be things that are necessary (or not permitted) in the jurisdiction where your dojang is located that are in the samples.  You should have a local attorney review and provide you with changes prior to use.  You should also read and customize for your dojang!

The forms may be found here.

If you have suggestions for other forms that you would like to see included, please fill out the request form below!

What does the LAC do?

A question I often get.  Along with “can you help me with…?” and “when do I need you to see something?”  In an effort to answer those questions (and since Volume V notes that legal assistance is available to all studio owners through the LAC, it is important to know what the LAC is for, what it can do, how it can help, and how it can’t) here is some general information (also found on the “About” page”).

As the World Tang Soo Do Association (“WTSDA”) and the World Tang Soo Do Foundation (“WTSDF”) have grown over the years, the need for access to information and resources related to the Legal Affairs Committee (“LAC”) has grown.  The LAC, and its staff, is charged with the administration of all legal activities of the WTSDA and WTSDF.

What does that mean, exactly?

Well, the LAC is the “legal department” for the WTSDA and WTSDF.  If there is an issue, contract, dispute or other matter which has legal implications, the LAC should be informed and/or involved.  For example, the LAC should receive for review all contracts that bind either company (all Regional Directors should be submitting contracts for sanctioned events in their region to the LAC prior to execution for review and comment).  The LAC should be informed if, at a sanctioned event, there is a serious injury.  The LAC should receive copies of complaints directed at the WTSDA (or where a student/student’s parent is looking to the WTSDA for assistance with a dispute with an instructor or studio owner).  The LAC should receive copies of any and all legal pleadings or documents which reference the WTSDA or WTSDF.  If there is an intellectual property question, such as “can I use the WTSDA logo on a t-shirt”, “can I print the WTSDA logo on a book I am publishing”, “I saw someone not affiliated with the WTSDA using the WTSDA logo, what do I do about it” or similar, the LAC should be contacted.

The LAC will also provide studio owners with information related to the affiliation with the WTSDA and the standards and legal rules associated with such affiliation.

Finally, the LAC may be able to provide you with contact information in your state where you can get jurisdiction specific legal advice for matters related to your individual school.

When in doubt, please contact the LAC.  We are here to help!

 

PLEASE NOTE:  the LAC is not a law firm and it represents the WTSDA and WTSDF, not any particular member, instructor, studio owner or Master.  The information provided herein is for informational purposes only and is not intended to be tax or legal advice.  Please see the Conditions of Use Page found here for more information.

To contract or not to contract?

You are starting a new dojang and you like the idea of contracting with your students.  Some places sell the idea of “no student contracts” but you see the benefit of a consistent revenue stream over time.  Not to mention, you can better plan the curriculum for the students and it is easier to set long term goals when you know they are signed up for the long term.

There are pros and cons.  Let’s just say, however, that you have opted to rely on the pros and you want a good contract.  There are vendors who collect payments for you (many that specialize in martial arts and many that don’t) who may offer you “their form”.  You should be cautious however.  There are pitfalls associated with this, since they are merely giving you a form.  And many dojang owners do not have the expertise to modify a form correctly.  If you do use a form that is provided to you by a thrid-party, there are a few things to consider.

First, the term (i.e., the length) of the contract is important.  Many US jurisdictions have laws known commonly as the “Health Club laws” which may impact the terms and conditions you are allowed to offer.  In some states, Pennsylvania for example, there is common law which has interpreted the relevant statute and martial arts studios do not have to comply with the provisions of the PA Health Club Act (see Commonwealth of PA vs. Tiger Schulmann’s Karate Centers).  However, in other states like North Carolina, martial arts studios are explicitly included in the definition of “Prepaid Entertainment Contracts (Chapter 66, Article 21) and there are a number of requirements which may be applicable depending on how the contract is structured.

Second, how are you going to collect the fees payable under the contract?  Many dojangs accept credit cards, checks or cash.  Additionally, many use third party billing firms (ranging from PayPal to EFC).  But, did you know that many states have requirements about the information that may be recorded as it relates to credit card information?  And many states have laws that address the disposal of any non-public personally identifiable information, such as a credit card number or bank account number.  There are many other state specific considerations: Delaware has recently adopted a new law (a good synopsis is here; the text of the law itself, here) which will become effective January 1, 2015; California has a law which prohibits the addition of a surcharge when a consumer chooses to use a credit card instead of cash (California Civil Code section 1748.1).

Assumption of the risk is basically the theory that a participant in an activity, who understands all the risks of such participation, can’t hold someone else responsible for injuries received while participating after they learn the risks and decide to do it anyway.  But, those statements in contracts which note that martial arts is dangerous and the purchaser agrees to undertake the lessons at their own risk, may have limits (a great 50 state survey can be found here).  So – these clauses should be drafted carefully.

Some other topics to consider and review with your attorney when drafting your contract:

  • Do you provide after-school type classes? Review the day care laws to ensure you are not inadvertently running classes which may cause you to be considered a day care.
  • Do you provide transportation to and from classes?  Ensure the necessary permission is contained to note you may be driving students.  Also review your own insurance to ensure you have appropriate coverage for this.
  • Does you state require any specific disclosures (i.e., storage or destruction of personal data; use of sub-contractors; etc.).
  • Are there specific credit-card (or similar) laws which may require additional provisions?
  • Does your state have a Health Club law?  If so, are you included and what are the specific requirements?
  • Are you required to have a bond, as a result of one or more terms of your contract?
  • Does your school offer classes in different states?  If so, consider carefully all applicable law and choose the governing law and venue jurisdictions carefully.
  • What are your cancellation of contract policies going to be?  These should be appropriately reflected in the contract.
  • Verify the age of majority for executing a contract in your state.  (There are a few states where it is older than 18; if so, verify the age for valid execution of a contract).
  • Do you collect health related information about your students in the contract?  If so, verify the applicability (or lack thereof) of various medical information related laws such as HIPPA.  (If you collect such information, even outside the contract, you should also verify!)
  • If you are using a payment vendor, clearly explain this in the contract, and include any information related to the levying of any late fees.
  • Are fees clearly identified?
  • Is your relationship to the WTSDA clear?
  • Have you clearly stated what is included in the contact? e.g., two classes per week and all test fees until Cho Dan Bo.