Copyright Law and Social Media – what are the risks?

Australian copyright law protects certain types of creative material, including artistic works, musical works, dramatic works, literary works, audio-visual works, sound recordings, and published editions. When someone creates one of these types of work the material is automatically protected by copyright law. The holder of copyright has the exclusive right to use and sell the copyrighted material and can enforce their copyright upon anyone who infringes their rights. When you post material on social media, you usually maintain the copyright in that image. However, you also provide consent to a social media platform to use your material through a ‘terms of use’. Your rights as a copyright holder may be altered by the terms of use of the social media platform.

The terms of use of a social media platform may require you to assign your rights to the platform, or provide a licence to use the material. An assignment means that you transfer your rights to the platform and do not retain copyright ownership. On the other hand, a licence maintains your ownership of the copyright but allows the social media platform to use your material for a certain purpose or time period. For example, Instagram’s terms of use provide the social media application with a non-exclusive, royalty-free, transferable, sub-licence to use the content users provide. This allows Instagram to sub-licence images so that other users can repost (or ‘regram’) images posted by other users. A similar licence can be found in Twitter’s Terms of Service:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods (now known or later developed).

Twitter’s licence goes further, allowing material to be published outside of the Twitter platform without compensation to the author:

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

What happens if someone infringes your copyright on social media?

Most social media terms of use include some kind of reference to copyright law infringement. For example, Facebook’s ‘Statement of Rights and Responsibilities’ includes the following warranty:

You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.

The policies and guidelines of a social media platform will also include a process for reporting infringements. If the social media platform will not remove the infringing content following your report, the next step would be to send a ‘cease and desist’ letter to the infringer. This can be tricky when the identity of the infringer is difficult to ascertain.

It is also important to consider whether a relevant defence applies to the infringement. The main defence to and infringement of copyright law is ‘fair dealing’ which allows copyright material to be used for certain purposes, including research and study, criticism or review, reporting news, judicial proceedings, and parody or satire.

A failure to attribute a work to an author could also breach provisions of copyright legislation. Regardless of whether a defence applies, social media users must ensure that all work is attributed to the original author.

Case example: Madden v Seafolly Pty Ltd [2014] FCAFC 30

If someone has ripped off your work, the natural response might be to oust them on social media. However, the case of Madden v Seafolly Pty Ltd demonstrates that it is incredibly risky to accuse an infringer online.

Madden, the owner of ‘White Sands’ swimwear accused well known swimwear brand Seafolly of copying her designs. Madden posted images of her swimwear designs on Facebook alongside images of Seafolly’s swimwear with captions such as “The most sincere form of flattery?” These images were posted without Seafolly’s permission. Seafolly firstly responded by issuing press releases against Madden before taking legal action.

Seafolly commenced official proceedings against Madden for her statements, alleging misleading and deceptive conduct. Madden cross-claimed arguing that press releases issued by Seafolly misleadingly accused her of acing maliciously. Both parties lost out for their conduct. Madden was order to pay Seafolly $20,000, and Seafolly was ordered to pay Madden $40,000. This case serves as a caution against making public statements about copyright infringement.

How can you ensure compliance with copyright law on social media?

1. Social media users must understand the terms and conditions of the platform they are using. You must understand how your legal responsibilities and rights operate under the terms of use before posting any content.
2. At first instance, try reporting infringement on a social media page to the platform itself. If you do not receive an adequate response, consider taking legal action.
3. Avoid public declarations of copyright infringement before seeking specialist legal advice.
4. If you wish to use copyright material, consider whether the fair dealing defence will apply. If not, you must seek appropriate permissions from the copyright holder. Regardless of whether a defence applies, copyright material must be properly attributed to the author.

Want to know more about copyright? Looking for an experienced solicitor in Newcastle, Sydney or the Hunter to advise you on intellectual property law? Call us on (02) 4929 7002, email us or complete an enquiry form.