Social media popularity is on the rise with no signs of slowing down any time soon. Users all over the world start their day off by logging into platforms like Facebook, Twitter and Pinterest and tend to leave that browser open all day. One of the downsides to this constant connectivity is that many users tend to feel the images they see on their social media channel, are ‘fair game” and free for the taking. Even though users are sharing the images on an online platform, it is not without legal implications, particularly related to ownership and infringement of intellectual property.
The whole idea around social media is just that, “being social.” These platforms were founded on the theory of sharing things like information, pictures and videos; all of which are uploaded, downloaded, transferred and pinned as a way to share and create community. The copyright issues come into play when users poach images without permission and unwittingly (or on purpose) make it appear as if the image was their own, or use it for their own personal gain.
According to the U.S Copyright Office, copyright happens when someone creates an original work of authorship. Ideas and facts can’t be copyrighted, but the author receives automatic copyright the moment the work is created until 70 years after the creator’s death. Copyright is automatic and doesn’t require the creator to fill out paperwork or file forms.
So can posting on Facebook, Twitter or Pinterest really violate copyright law?
In a word: yes. Copyright holders have various exclusive rights in their creative works, such as the right to reproduce, distribute, and publicly display the copyrighted material. If the social media user is not the copyright holder, therefore, he or she infringes the copyright in the work by reproducing, distributing, or publicly displaying the copyrighted material on a social media website. But the social media user posting on these websites is not automatically doomed to “infringer” status.-Bloomberg Law
This put social media platforms in the awkward position of needing to abide by copyright law, yet still needing to encourage users to experience the social sharing their sites were founded on. Oftentimes the copyright holders themselves turn a blind eye and “look away” from the repeated sharing of their images; grateful for the enhanced visibility and free publicity that the act of sharing gives them.
YouTube has spent millions of dollars perfecting a Content ID system to thwart copyright violations, and Pinterest has offered a small bit of code website owners can add to their sites that prevent their images from being Pinned to someone else’s site. Unfortunately the other social media sites do not have infringement precautions in place nor do they screen the images for violations, putting the responsibility back on the user to do the right thing.
Thanks to the 1998 Digital Millennium Copyright Act, website owners are not liable for content on their sites that are infringing copyright, but must take the image down if it is disputed by the copyright holder. In recent months there has been an outcry of protest from copyright holders that this creates an “upside-down” situation by putting the burden of the policing on the copyright holders, thereby creating a cycle of frustration and wasted time.
Another important point is that social media users are somewhat protected under The Fair Use Doctrine. This doctrine permits the use or reproduction of copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use is not the same as free use, but it does allow for limited and reasonable uses of images.
Take-Aways and Best Practices to Avoid Copyright Infringement
Before sharing images from another site on your own, ask permission. “I saw this amazing photograph of your TedX presentation; may I post it to my blog and share it with my readers?”
Just because you’ve “given credit” for a photo you have used doesn’t mean you are free of copyright infringement.
Out of print (books) does not mean out of copyright. When a book goes out of print it is a temporary state, so using the information within is still copyright infringement.
Take a moment to reflect on why you are using an image. Does it fit the parameters of Fair Use (for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use)? If the answer is no, ask for permission.
Finding something on the internet (Google Images) does not mean it is in the public domain. “Public domain” is a term of art and refers to a legal rule that means a work is no longer covered by copyright.
When it comes to photos, when in doubt, assume it’s subject to copyright and don’t use it without the appropriate permission.
**This blog post is in no way a substitute for legal advice.
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