Avoiding Social Media Minefields – part 3

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by Rebecca Crandall, Attorney at Olive & Olive, P.A.image001

If you’re reading this blog, you already know about social media.  You probably already know about the major players (e.g., Facebook, Twitter, Instagram, LinkedIn) and might even participate in one or more of these venues personally and professionally.  If you participate professionally or are considering doing so, there are many things you should keep in mind.

This is the third post in a series of four on this topic.  In this post, I address how copyrights should and should not be used in social media. The first post covered general dos and don’ts, the second addressed trademarks, and the fourth will speak to rights of publicity.

The definition of copyright is: the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material and to authorize others to do the same.

Copyright DOs and DON’Ts

DO be aware of user agreements, especially regarding user generated content, and have your own in place.

If you make your social media site interactive, remember that users of social media are used to constantly posting content – photos, music, videos.  Who owns it?  That depends both on whether the content posted is an original creation of the poster and your terms of service.  As to the first issue, if the shared content is not original and the poster does not have permission to reproduce the content, then doing so may constitute copyright infringement.  You should address this situation in your terms of service.Assuming the content is original to the poster, then you’ll have to decide whether and to what extent you want to claim ownership over user generated content posted to your own sites. You could allow the user to retain full ownership of the content, transfer ownership completely to you, or something in between.  Claiming ownership of user generated content allows you more flexibility in using that content, but it could increase the risk of liability for offenses such as defamation and copyright infringement.  Regardless of your choices, also be aware of the potential for backlash if you change your policies.

DO consider how and whether you want to use social media to promote your own creative works.

You may want to consider only posting your own content to avoid the potential for liability to others.  Pinterest attracts millions of visitors, relying heavily on third-party copyrighted material to generate traffic for its site.  While many Pinterest users give credit to the original authors of the content, giving credit is not the same thing as having permission.  While some copyright owners enjoy increased publicity, others, especially those that make money by selling works of authorship (e.g., as stock images online), don’t want to lose control of the work they own.  If you only post your own works, you don’t have to worry whether a third party will complain about your sharing of their works.

DO consider whether to protect your own works.

Consider whether to protect your own works from distribution or at least uncredited distribution through social media.  If you want to try to block people from copying or sharing your images, you can add XML code to your website to prevent pinning images on Pinterest or to block right-clicking images on most browsers.  On the other hand, if you want to encourage people to share your images, you can optimize your site and/or images for sharing.  You may want to incorporate a watermark into your images so credit to you won’t be lost when someone breaks the link between your image and your site.

DON’T be too harsh in enforcement efforts.

This is a repeat from the trademark post, but it bears repeating.  First, you might try contacting the offending party and politely asking them to remove the image.  If that doesn’t work, you may be able to take advantage of the Digital Millennium Copyright Act (DMCA).  Under the DMCA, web site operators, including advertisers and search engines, that post unauthorized copyrighted works of others may be liable for copyright infringement. The DMCA provides a “safe harbor” for service providers that take establish a notice and take down procedure and register a Copyright Agent that receives copyright infringement complaints.

DON’T use content without determining its copyright status.

It’s absolutely critical to accurately identify the source of any content you want to use that doesn’t originate with you.  Even if you are not directly responsible for copyright infringement, it’s possible to still be found liable for copyright infringement for inducing another to infringe when you are in a position to prevent the infringement.  For example, if you incorporate a meme generator into your website, someone could upload an image owned by a third party and use that image in an unauthorized manner.Sharing the work of another without authorization is a risky choice.  A New York jury delivered a landmark decision last fall when in a lawsuit it awarded $1.2 million in damages to photographer Daniel Morel for copyright infringement committed by Getty Images and AFP.  Morel, born in Haiti, posted photos of the aftermath of a 2010 earthquake to Twitter.  Another Twitter user copied and reposted them, claiming them as his own.  AFP and Getty distributed the works under the guise of having obtained permission to do so from the author, though they knew very quickly that Morel was the true originator.  The case is currently on appeal.

DON’T assume fair use or implied license is a valid defense.

The two main defenses to copyright infringement in social media uses are fair use and implied license.Fair use is an exception to the exclusive right under copyright law to control the use of your creative works.  This exception allows limited use of copyrighted material without the owner’s permission. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving, and scholarship.  Most Pinterest users would qualify their pinning of other’s works as “fair use” since they are generally commenting on the original work; however, this isn’t always the case and shouldn’t necessarily be the fallback position for a business.An implied copyright license is a license created by law in the absence of an actual agreement between the parties.  Implied licenses arise when the conduct of the parties indicates that some license is to be extended between the copyright owner and the licensee but the parties themselves did not bother to create a license.  For example, if a user posts content to a social media site that permits downloading or embedding, it is seems reasonable to assume that the owner has granted an implied license to third parties to republish the content.  Flickr and other photo sharing sites frequently offer a functionality that precludes “save as” downloading or embedding.  When a user fails to take advantage of such protections, it may be assumed that she has made a conscious decision to offer the photos to the world, free of constraint against reuse. Although this theory is debatable, it is not without legal precedent.  In 2006, the Federal District Court for the District of Nevada found an implied license for Google to “Cache” the plaintiff’s online works where the plaintiff, with knowledge of how Google would use copyrighted works posted online and knowledge of how to prevent such use, placed his works online without implementing such preventative measures.  That said, can you afford the risk?

rebecca-crandallRebecca Crandall is an intellectual property attorney with Olive & Olive, P.A.  Rebecca works with inventors to protect their inventions, businesses protect their brands, and creative types protect their creations.  She also regularly represents clients in dispute matters relating to these issues.  Rebecca is one of just six attorneys in North Carolina who is both a registered patent attorney and a NC Board Certified Trademark Specialist.