We are all aware of the dangers of posting content on social media that could jeopardize our relationships or careers. However, we may not realize that a photo we share on Facebook could one day show up in an advertisement for Facebook or a local business’s social media marketing.
Although it is unlikely that any large social media site or reputable business would go so far as to use your photos in their promotions, the fact is that the terms of service for most social media platforms would allow them to do so. While asking permission to use your images may be the courteous approach, it is by no means required.
In general, by agreeing to the terms of most social media sites, users are granting the sites the right to use their photos, videos and other content for any purpose, including advertising. Users own all of the content they post on social media and can control how it is shared through each site’s privacy and application settings. While content can be strictly controlled, much of what is posted is typically marked "Public.” According to Facebook's Statement of Rights and Responsibilities, images posted with the Public setting are available for access and use by anyone, including entities not on Facebook.
Keep in mind that all social media platforms have different rules. Therefore, you need to become familiar with each platform’s terms of service or use to know what is or isn’t acceptable. For example, reposting any content is actually in violation of Instagram’s Terms of Use. On Pinterest, you can repin other people’s images on the site, but cannot copy them to another platform.
When it comes to copyrighted material or intellectual property, the rules may be different. Copyright protection allows 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 (websites, blogs); motion pictures (movies, television, videos); and photographs (commercial, personal, portrait). Copyrights must be registered with the U.S. Copyright Office to be enforceable.
If a business uses someone’s copyrighted images or videos without permission, the business has infringed on that person's copyrights and can be held liable. For example, the Spanish edition of Vogue magazine was caught re-purposing a photo on its Instagram account without giving credit to the original photographer. The magazine later apologized and paid the photographer for the image usage and copyright infringement. However, a court judgment for a single copyright infringement can be for many thousands of dollars.
Once again, however, it is important to read the fine print. Facebook says it is committed to helping users and third parties maintain their intellectual property rights, including those regarding copyrighted material or trademarked images and slogans. That said, the site’s terms of use state that Facebook has the right to sub-license content posted to the site that is covered by intellectual property rights. This means they can charge a fee to other businesses to use your photos or videos.
If you run a business, you may be considering sharing content posted on your social sites by customers or employees. Beware that if you use copyrighted or trademarked materials from or on social media, you could face potential legal ramifications. At the very least, you may receive a removal notice and potential censure from the site. With intellectual property and copyright concerns ever-present, ask for permission to use an image, video or other information from the author or creator. People are often happy to allow others to use their content provided they are given credit.
There may be legal options available to you if you discover a photo of yourself being used in a way that you didn't agree to. Laws protecting appropriation of likeness prohibit using another's image to advertise or sell products without that person's consent. If someone uses a photo to portray you in a misleading or unflattering way, you may have a lawsuit for placing you and your image in a false light. If the photo in question was taken somewhere other than a public setting, you may have a case for intrusion of solitude.
Whether you are an individual or a business owner, educating yourself about social media platform terms and intellectual property protections is vital. Be careful about what photos you post on social media and what rights you may be giving up or violating by doing so. If you have specific concerns or questions or want to know more about possible legal recourse for unauthorized use of your content, we are here to help. Please call us at 973-509-8500 x213 or email 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.