Social Media & Intellectual Property Law

What You Need to Know

by Kristen De Deyn Kirk

So many of us promote our businesses on social media. We load a beautiful image onto Instagram and write a clever caption. Post an event summary on Facebook and elaborate on our involvement. Craft a thought piece on LinkedIn to grow our reputation as an industry leader. Act a bit irreverent with music in the background on TikTok, and show others we understand that humor builds relationships. Or maybe we have a personal website or blog where we share the work of favorite artists, writers, and other creators with our readers.

Our intentions are good: Share our interests. Connect with potential clients. Make them think. Make them smile. Make them buy our product. This type of self-promotion is so much more fun and more creative than cold calling – and so much less intimidating.

What could go wrong? Maybe nothing. Maybe everything.

Perhaps that photo on Instagram isn’t yours and maybe the owner will discover your post and become outraged. Possibly the event you spotlight includes a copyrighted name or image, and you haven’t followed the owner’s guidelines. Maybe you’ve copied someone else’s words and thoughts, and even with giving them credit, you’re at risk of being reprimanded – or sued. Oh, and what about the text from that AI chatbot or you just queried, or that image from Midjourney? It’s a slippery slope.

When it comes to social media, be careful.

Two Virginia lawyers shared those two words, each articulating the message in two separate interviews. Actually, more than uttering: Urging.

Proceed with caution
“Be careful about copying,” James Stern, professor of law at William & Mary Law School, says, “copying copyrighted images, more than anything, and music, too. But it’s a murky area.”

Stern has taught at William & Mary Law School for a decade. After earning his law degree at University of Virginia School of Law, he worked on cases for the U.S. Supreme Court and the Fourth Circuit Court of Appeals. He earned a Thomas Edison Innovation Fellowship from the Center for the Protection of Intellectual Property.

Intellectual property is a bit of a grab bag, or catch all, for a couple of different areas of law, that are analogized to ownership, he explains. They have a large federal component to them, with important state laws, too. Three federal bodies of law create intellectual property regimes that are long standing – copyright, patent and trademark law. Copyright law covers expressive materials, like books, movies, music, art, stories…fiction and nonfiction,” Stern says. “If someone makes a copy of the article that you write, you might have a claim for copyright violation.”

Note the word might.
“There is a doctrine of fair use,” Stern continues. “It’s worked out on a kind of case-by- case basis, and so not every instance of copying will be considered copyright infringement. But it’s not generally something that you can take to the bank, and you should be on your guard if you’re copying someone else’s artistic work or writings.”

Case-by-case considerations
Easy answers aren’t possible when it comes to what you can and can’t share safely on social media. Say you want to be funny and find the perfect, popular cat meme to promote your business. Most likely, if you’re reposting the meme, you’re safe—unless maybe that meme has an image in it that was used without permission by the original creator. The original creator perhaps has copyright over what he’s added to the image, but not necessarily the original image that is the foundation of the meme.

Are the laws clearer about something else that seems innocent: Sharing someone’s LinkedIn post and adding your thoughts? Unfortunately, no.
More information about the context of the post would be needed, Stern says, before a thumbs up or thumbs down could be suggested regarding the post’s legality.

Those concerned about copyright infringement have a few things to consider:
• Facts cannot be copyrighted
(although the way they are expressed can be)
• The legal doctrine of fair use, which Stern notes, is meant to allow for use of copywrite-protected material under certain circumstances where you might say there’s less harm to the copyright holder, and more social value to it’s use. “But it’s notoriously open-ended and contextual,” he says. “So it’s hard to generalize, but some things are more favorably looked upon as fair uses than others; educational uses and news reporting on the one hand are more favored. Commercial applications, as opposed to nonprofit, are somewhat less favored. But there are no hard and fast rules.”
• Also noted in the fair use clause is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” In other words, how much of the original work you “repurposed” might be a consideration if you were to be sued.

“Credit where credit is due” falls short
Zachary Cohen, a lawyer and a shareholder with ThompsonMcMullan, P.C. in Richmond and a graduate of University of Maryland School of Law, warns creators and copiers: Merely giving credit to an author, artist or musician doesn’t mean you’re not violating a creator’s copyright.

He’s had clients run into problems on both sides of the issue, ones who have gotten into trouble for copying content and ones who have seen their content lifted and used verbatim by competitors.

He advises, as much as possible, registering for copyrights. While a copyright is formed when you create content, taking steps to register work might further protect you.

“Content creation is hard,” Cohen says. “Copying is very easy. If you’re going to file [for damages if your work is used by someone else], under the federal Copyright Act, you actually need to register.”

A recent Supreme Court decision supports registration, Cohen shares. Doing so gives you the ability to be awarded statutory damages. It might not be practical for you to register every post you create, but you might want to consider doing so for pieces key to your business – such as thought leadership pieces, client success stories and unique images.

Also be cautious of thinking that nonprofit status might protect you when sharing someone else’s work.

“You think your cause is noble but; it doesn’t mean you can go violate people,” Cohen cautions. “Talk to someone if you are going to consider using other people’s material, and that extends to name, image and likeness. I had a prominent case about using the name, image or likeness of a person, where you might be liable under Virginia’s 8.01-40 law. You don’t want to use someone’s face or name implying that they ‘endorsed’ your posts.”

Thinking ahead
It’s nearly impossible to go a day without hearing about ChatGPT, the artificial intelligence app capable of creating content from a few questions or prompts. Using other sources online—other unidentified sources—and taking mere minutes, ChatGPT could be a dream for busy content creators. Yet, it’s impossible to know from where the content is pulled – and if it’s “yours” now.

“The question going forward is ‘who owns the intellectual property associated with the answers that it creates?’,” asks Cohen. “It strikes me that people might end up with very similar answers [when prompting ChatGPT].”

Can one or more people own a similar answer, or no one? Currently, there’s no definitive legal analysis.

As with other content ownership concerns, we might not have a clearcut guide any time soon, so it’s always best to research pertinent intellectual property laws, seek legal advice, and navigate the legal landmines with care.

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