Today’s means of communication is ever more dependent
on social media. Whether you’re an individual, a onewoman
shop, a fortune-500 company, or even the
President of the United States, social media is the fastest
and easiest way to be heard. But where does the line
lie between legally sharing someone else’s material and
intellectual property infringement? Specifically, is re-posting
an article or photo, using a brand hashtag, or re-sharing a
meme infringement? The answer to all three questions is
maybe, depending on certain factors. A discussion of some
general guidelines to keep in mind from a U.S. perspective
is below.
While litigation involving social media use has been
relativity sparse (perhaps due to an inability to locate
infringers or calculate damages), sharing and re-sharing
copyrighted work on social media has led to some law
suits, as has use of brand hashtags. Litigation is also
routinely threatened for posting memes with copyrighted
images. U.S. courts presiding over cases involving social
media posts must decide the very fact-intensive legal
questions of trademark and copyright infringement and
whether any fair use defenses apply. In the trademark
context, the fair use inquiry seeks to identify whether the
trademark is used only to describe a product or service
and/or to refer to the trademark owner without suggestion
of sponsorship or endorsement by the mark holder. The
copyright fair use question involves weighing the following
four factors, which are highly fact-specific and subject to
interpretation:
The purpose and character of the new use, including
whether the work is non-commercial and serves as
a “transformative” purpose, such as commentary or
criticism, and adds something new
The nature of the copyrighted work
The amount and substantiality of the portion taken,
and
The effect of the use upon the potential market for
the original and derivative works
Because of the fact-intensive analysis and specific context
of each case, very few U.S. courts have issued clear
guidance with regard to infringements and any potential
fair use defenses on social media. As a result, social media
users cannot assume that the trademark and copyright fair
use analyses are any different for social media shares and
postings than for more “traditional” forms of infringement.
Below are some general guidelines to keep in mind:
-
Public Domain: Use of anything in the public domain
is fair game. Note, however, that just because an image
is on the Internet, that does not mean it is in the
public domain nor does that mean it is available to use.
Examples of works in the public domain are (a) a work
in which a copyright has lapsed; or (b) certain works of
the U.S. federal government.
-
Know What You’re Sharing: Are you using an
artist’s image, music, or video clip, or a company’s
trademark? Tread with caution if you have not asked
for permission or paid a license to use the material.
Generally, creative or artistic works are given very
broad copyright protection. And while words and
short phrases such as names, titles, and slogans, familiar
symbols or designs, and lettering typically cannot be
copyrighted, they can be claimed and registered as
trademarks under certain circumstances.
-
Ask for Permission or Get a License: Obtain
express permission from a trademark or copyright
owner to use their material and follow their guidelines
for use. With regard to websites that allow you to
download content, be sure to know the terms of use.
Some websites even make clear that they provide
consent to share their material. Also, some companies
will allow use of brand hashtags in connection
with promotions, contests, or in reference to their
products.
A license is a formal means of consent to use material
and often involves payment. License terms can be
found on websites that offer images, music, and other
copyrighted work for sale. The terms may also clarify
that a specific type of use (commercial versus personal)
is covered if the terms are strictly followed.
-
The Fair Use Defense Is Fact-Specific: Fair use
is only a defense to infringement and is a complex and
fact-intensive inquiry determined on a case-by-case
basis. Thus, weigh the fair use factors carefully when
thinking about use, and do not assume fair use will
protect you from liability.
-
Know Terms of Social Media Platforms:
Whether it’s Facebook, Twitter, Instagram, Snapchat,
Pinterest, or others, check the terms of use or service.
Often these platforms will work with you to assist in
taking down infringing material posted by others, but
can also hold you solely responsible for any infringing
posts of your own.