Whether you are an individual or a business owner, educating yourself about intellectual property protections on social media platforms is vital. However, this is easier said than done. The rules are complex and there are a lot of gray areas when it comes to social media and copyright law. As a result, while more than 2 billion people use social media, it is likely that many of them have little or no understanding of whether or not they are putting their intellectual property at risk – or risking a lawsuit by misusing another user’s content.
Intellectual property covers any original work of authorship, design, or invention. Intellectual property law protects these unique productions through copyrights, trademarks, trade secrets, and patents.
Copyright law protects original works of authorship that are tangible forms of expression, allowing authors, artists, and other creators to produce original works without fear of someone else copying and profiting from their work. Changing technology has expanded the scope of works covered by copyright to include digital content such as websites, blogs, movies, videos, songs, and photographs.
Once someone creates an original work, they own the copyright to it. (Although not required, registering a copyright with the U.S. Copyright Office allows the author to enforce copyright protection against anyone who infringes on their work.) Many people believe that information published online is not covered by copyright law, but social media is not an exception to copyright: the author holds the copyright to items they post on networks like Facebook and Instagram if the work is eligible (tweets on Twitter might not be.) The reverse is also true: someone else's copyrighted material cannot be posted on social media without permission.
One way that a copyright owner can protect their original material is by claiming that someone who copied their work has committed copyright infringement. Copyright infringement occurs when someone reproduces, distributes, or displays a copyrighted work as their own.
Fair Use
U.S. law has some exceptions that do allow work to be used without permission. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Unlike copyright infringement, fair use is when materials are copied for a limited and transformative purpose, such as criticism, comment, news reporting, teaching, scholarship, and research. A court considers four factors in evaluating a question of fair use, including the nature of the work, the amount of work used, the purpose for the use, and whether it substantially deprives the copyright owner of income.
Courts have held that simply posting a photograph online is not considered transformative. However, in a recent case, a court found that energy drink maker Bang Energy posted social media ads on TikTok that violated Sony Music Entertainment copyrights. Because Bang Energy used the music for commercial purposes (to promote its energy drink), the fair use exception does not apply.
TikTok’s growing popularity has highlighted the legal implications of posting on social platforms. TikTok content often features dance videos, animal videos and viral challenges. Most of the components of these short-form videos, such as the music, sounds, dances and choreography, are protected by copyright. Issues can be avoided by obtaining permission to use protected material and contacting an attorney about legal rights.
Keep in mind that social media sites do not own the rights to a user’s content. But by posting on a platform, you are agreeing to the site's terms of use – which often give the site a license to use your work. Established social media sites have privacy policies in place that protect published content from copyright issues, and it is important to familiarize yourself with the policies of each individual platform you plan to use.
Other users may also be allowed to share your posts within the platform. That said, posting your work does not mean that others can use it without attribution. If someone copies your work and posts it on their own feed without attribution, it does not automatically constitute fair use and may not comply with the terms of service for the platform.
In the fast-paced world of social media, it is imperative that users pay attention to changes in copyright laws and protections. If you have questions about your intellectual property rights, please contact us at 973.746.6655 (ext 201) or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.
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