Copyright laws and social media: A small business guide
When it comes to social media marketing, the name of the game is sharing content to amplify your brand's visibility and connect with your target audience. Social networking sites are prime places to get the word out about your business. The potential audiences are staggering:
- Facebook: 1 billion users worldwide.
- Twitter: 560 million users.
- Pinterest: 70 million active users.
- LinkedIn: 240 million users.
- Instagram: 150 million users.
All those prospects, right at the tips of your fingers! But these numbers don't mean anything for your business if you don't publish content and engage your fans and followers with your brand.
Therein lies the catch: you have to stay active and contribute content if you want to maintain your audience's interest. At the same time, if you don't know how copyright laws work, you could accidentally land your business in a sticky legal situation when you pin a photo that isn't yours.
Say, for instance, you maintain a Pinterest profile for your wedding planning business. To help showcase your company's personality and style, you create boards with designer wedding dresses and wedding photography. Since these images don't belong to your business, could you be sued for infringing a copyright owner's intellectual property?
Let's take a look at the basic tenants of copyright law and how they could be applied to the creative content shared on social media sites.
Copyright laws: What you need to know before you tweet, pin, or share
If you post content that isn't yours on Facebook, Twitter, Pinterest, or other social media sites, you could be liable for copyright infringement. That's because copyright holders have exclusive rights to their work, and in order to reproduce or publicly display their material, you have to have permission.
The kind of work that could be subject to copyright laws includes music, art, photography, film, and writing.
So that designer's dress you pinned to your board? It could very well become the catalyst for a lawsuit since you didn't have permission to use the image. You can always ask the designer for permission to post his or her work on your business's social media page, but this process can quickly become time-consuming if you post every day.
To circumvent copyright violations, you could assess whether or not your posting of the image or creative work could be deemed "fair use." However, this defense is case-specific and will depend on how the work was used.
Fair use and social media: Where exactly is the line in the sand?
The Fair Use Doctrine allows people other than the copyright holder to reproduce copyrighted materials for the purposes of criticism, comment, news reporting, teaching (including copies for the classroom), scholarship, and research.
To determine whether the reproduction of copyrighted material is a fair use, a judge would consider why the work was used, the nature of the copyrighted work, how much the copyrighted work was used in relation to the work as a whole, and whether the use hurt the potential market for or value of the copyrighted work.
The first factor is the one that could get your small business in trouble. To be considered fair use, the reproduction must be for “transformative” purposes rather than commercial. To be considered “transformative,” the reproduction of the work must add something new to the original.
Though "commercial use" is a broad concept, it's a safe bet that if a copyrighted work contributes certain gains to your business, it would fall under this category. However, commercial use alone isn't enough to nullify a fair use defense.
A court will also need to determine whether the material was already available to the public. Also, the more creative the work is, the more protection it will likely have against copying. The court will also consider whether the use was reasonable given the nature of the reproduction.
Perhaps the most challenging leg of the fair use equation is determining whether or not the use of the image or materials hurt the market for the original work. For example, if a fine art photograph was shared a thousand times, seeing the photo online may fill the market's demand for the original work. If that's the case, the copyright holder may be able to mount a successful lawsuit against the person or company who first shared the image on social media.
Why a link isn't enough to absolve copyright claims
Even if you link to or credit the original author or creator of the work from your social media page, you could still be sued for copyright infringement when you post or reproduce work that isn't your own. The only way to immunize yourself from a potential infringement claim is to have permission to reproduce the copyrighted work or to only post images that belong to the public domain (i.e., works whose intellectual property rights have expired or have been forfeited).
And to make matters even murkier, when you sign up for a social media account, most sites ask you to verify that you won’t post any content unless you hold intellectual property rights. In essence, social media sites require users to assume liability for their use of material on the site.
What happens when you violate someone else’s copyright on your social media page?
So let’s say you pinned that copyrighted image of a designer wedding dress even though you didn’t hold the intellectual property rights. Here’s what could happen:
The smaller your fan base, the less likely you are to suffer any consequences, even if you blatantly broke copyright law.
On the other hand, you could receive a cease-and-desist letter from a lawyer representing the image’s copyright holder. In that case, you’d have to take the image down and possibly respond to the letter. For that, you’d need the help of a lawyer, which means one thing: legal bills.
If your post is part of a larger trend of people misusing the copyrighted image in question, you might be served with notice of an advertising injury lawsuit. This would require you to contact your lawyer and your insurance provider.
General liability insurance: A safety net for your small business's social media activity
Even if you play by all the copyright rules, there's no guarantee that you won't accidentally post creative content that isn't yours to use. That's why a savvy business owner with a thriving social media life should carry general liability insurance, a kind of small business insurance that offers advertising injury coverage.
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