Copyright Law and Social Media – what are the risks?
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What happens if someone infringes your copyright on social media?
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  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?
- 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.
- Avoid public declarations of copyright infringement before seeking specialist legal advice.
- 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.