Over the past decade, social media has become one of the main platforms for businesses and individuals to spread brand awareness and to promote their products. The rise of the use of social media by businesses and individuals has resulted in an increase in copyright infringement cases that arise from the unlawful use and distribution of copyright protected content. Social media provides the ability for users to post and share content, such as photographs, instantaneously with family, friends, and the general public. However, most users of social media (such as Instagram, Twitter, Facebook, Pinterest, etc.) are unaware of the risks of sharing content not owned by the user.
Similar to trademarks and patents, copyright is a form of intellectual property. Copyright, which is specifically mentioned in the U.S. Constitution, protects original works of authorship fixed in a tangible medium of expression.” Under the 1976 Copyright Act, exclusive rights are granted to the copyright owner to do and to authorize others to do the following:
- To reproduce the copyrighted work in copies or phonorecords;
- To prepare derivative works based upon the copyrighted work;
- To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
An original work of authorship is protected upon creation of such work. An infringement occurs when anyone violates any of the aforementioned exclusive rights of the copyright owner. .
As discussed above, social networking websites provide access to individuals and businesses to upload photographs, videos, and other multimedia content for distribution throughout the network. Businesses utilize social media to promote their brands and to communicate directly with consumers. On social media networks, violating another’s rights can be simply a click of a button. Individuals, as well as businesses, often post content that is not their original work of authorship without obtaining permission from the copyright owner. Further, more often than not these businesses and individuals do not properly attribute the authorship.
All it takes it one click of a button to commit copyright infringement. Owners of copyright protected works, such as photographs, tag businesses and/or celebrities that are the subject of the photograph to aid in the spread of the content on social media networks. The majority of these businesses and individuals are alerted of these tags and then share the photograph without authorization from the copyright owner. For example, a photographer takes picture of Heidi Klum holding a Louis Vuitton bag. The photographer uploads the photograph onto Instagram and tags Heidi Klum and Louis Vuitton through their Instagram handles. Louis Vuitton is alerted of this tag, downloads the photograph, and reposts it on its Instagram page without authorization from the photographer. During this process, Louis Vuitton is making copies of the image without authorization. The creation of copies and the reposting of the photograph is copyright infringement and Louis Vuitton would be liable for damages. A number of celebrities and businesses have been involved with similar such cases. See Gigi Hadid, Ariana Grande, and Jennifer Lopez.
Damages for copyright infringement can be actual damages and any additional profits from the infringer or statutory damages. The election of statutory damages can result in an award of no less than $750 and no more than $30,000 to the owner. If the infringement is deemed to be willful, then damages can be enhanced up to $150,000.
The example above has resulted in a significant increase in copyright infringement lawsuits across the country. So what can businesses do to protect against this risk? First, it is imperative that a business perform due diligence before posting content on social media networks, especially given the number of copyright infringement lawsuits that are being filed over postings on social media. A business has to determine whether it has the legal right to post and distribute content on social media. If there is even the slightest doubt of whether a business has permission to post or share the content, then it should absolutely not do it. Reaching out to the owner of the content for authorization to post and distribute the copyright protected content can save businesses from the risk of being sued for copyright infringement. Businesses can also seek legal counsel to develop a social media policy and to educate employees on copyright content and the risks associated with sharing and posting such content on social media. By being proactive, businesses will minimize the risk of a potentially expensive litigation.