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We all use social media at some point – whether it’s for business purposes, catching up with friends or scrolling through posts of exotic destinations on Instagram. While we all like to think we are social media savvy, your social media posts may be infringing someone else’s copyright.
When you sign up to a social network, you agree to the terms of use. By signing up to Facebook, for example, you agree to grant Facebook a non-exclusive royalty free licence to use your posts and the right to sublicense those rights, subject to your chosen privacy settings. This allows your friends to see what you post, and gives Facebook the right to “reproduce” your post on your friend’s timelines. It also gives Facebook the right to use your posts anyway they like, provided that they adhere to your privacy settings. If you are worried your posts are going to become part of a marketing campaign, make sure you have limited your privacy settings.
When you sign up to Instagram you are also granting Instagram a non-exclusive royalty free licence to use your posts and the right to sublicense those rights. Instagram also states that you are responsible for your conduct and any content that you post or display on or via their service, making it all the more important to ensure that you do not infringe someone else’s copyright in the process.
While you are not giving these social networks ownership of the copyright subsisting in your posts, they are able to use your content without paying any compensation to you for such use, provided that it falls within the terms of use agreement.
So you are aware of the terms and conditions relating to your chosen social network, how do you avoid ending up with a letter of demand or a copyright infringement action?
- Consider what it is you would like to share or post. Is it a post setting out your latest thoughts, a photograph you took or are you sharing an excerpt from a book? If you are the author of your post or photograph, you are free to post and share as you please. In the case of the book, you may find yourself in hot water if you have not obtained the author’s permission and your use does not fall within the allowable “fair use” defences (for the purposes of research or private study; for personal or private use; for the purposes of criticism or review of that work or of another work; or for the purpose of reporting current events). Using videos and photographs which were not created by you or are not part of public copyright licences in your posts, without permission from the author is copyright infringement.
- If you aren’t sure – ask. While it is always a good idea to credit the author of the content you want to use in your post, make sure that you have permission to use the photograph or applicable content. This is not as difficult as it sounds, either comment in the original post asking the author for permission to use the content or send them a direct message. It doesn’t have to be an essay, getting straight to the point and asking is good enough.
- Don’t get too caught up in viral posts. There are no shortages of viral posts such as memes or videos. For example the “distracted boyfriend” memes which did their rounds some time ago were based on a stock photograph taken by photographer Antonion Guillem, which was posted on the stock photo database iStock. The stock photograph depicted a man looking at another woman over his shoulder while walking with a woman (presumably his girlfriend) who was not very pleased by his actions. The photograph was used by many users as a metaphor for just about anything. While the photograph proved to be immensely popular, the creators of the memes and those who shared them did not purchase the photograph from the original stock database. As they had not purchased the rights to use the photograph, they were infringing the author’s copyright, for which he received no compensation. While the author did not take action against the infringers, it does not mean that this will always be the case.
- If you would like to refer to someone else’s Instagram post, consider sharing a link instead of taking a screenshot. In this way, people are directed towards the person’s Instagram page.
While being aware of what you are posting and asking permission to use content may seem simplistic, a surprising number of people are not aware of the implications of copyright law on social media. Next time, think twice before you post or ask us to be certain before you do.
Hillary Brennan – Attorney
Kim Rademeyer – Partner
