Fair use and copyright in social media marketing
Ever been in this situation? You're killing time trying to find the end of the internet. You scroll through news stories, do a little online window-shopping, and read a few posts from your favorite bloggers. If something strikes your fancy, you may decide to share the content or image on your business's social media pages to get your fans and followers talking.
But that's where small-business owners can run into problems.
If you don't have the author's permission or license to distribute their work, you could be sued for copyright infringement. While carrying small business insurance can cover the costs associated with a copyright infringement lawsuit, being sued is a stressful ordeal that no one wants to face. So how can you reap the perks of using social media without running the risk of infringing on someone's copyrights?
Certain uses of copyrighted material on social media sites fall under the umbrella of "fair use," which is the only real defense against copyright infringement. Ready to find out how to follow fair use guidelines so you can avoid copyright infringement lawsuits? Read on for the juicy details.
What is copyrighted work, anyway?
Copyright laws protect intellectual property – even those works that may first appear untethered to an author. Copyrighted works include photographs, videos, memes, and blog posts on Twitter, Facebook, Instagram, Pinterest, and YouTube.
The person who creates an original work owns the copyright to that work, regardless of whether they've officially registered the material or not. Only a copyright holder can decide whether their work is distributed or publicly displayed. They are also the only person who can license the work for others to use and distribute.
If you share another person's copyrighted work on social media without their licensure or permission, you could be held liable for infringing on their exclusive rights. The exception would be if your actions fall under the jurisdiction of "fair use."
The four components of fair use
As mentioned earlier, fair use is the only complete defense against a copyright infringement claim. But the line between infringement and fair use can be subjective, so courts must consider each case individually. The following are the four criteria used to evaluate alleged copyright violations:
Purpose and nature of the use
Fair use was designed to protect certain uses for copying someone else's work. For instance, if a teacher made copies of someone's story to share with her class, the Fair Use Doctrine would protect that instance of sharing copyrighted work without permission.
The same goes for criticism and parody, since these forms add a "transformative" layer to the original work. Use can be considered transformative if your use adds a new layer of meaning, essence, or character to the original. By simply posting content to social media sites, you aren't adding anything to the piece. Instead, the use was probably for aesthetic or entertainment value. By contrast, a search engine's reproduction of copyrighted images is transformative because it directs the user to online information.
Nature of the work
Creative works enjoy more protection under copyright laws than educational or functional works. And if the work is unpublished, out of print, or confidential, the fair use defense may not apply. So when determining your business's liability in a copyright infringement case that stemmed from a social media post, the court will take into account the kind of work you copied.
Amount and substantiality of the used portion
If you reproduce a significant amount of the copyrighted work without transforming the "essence" of the original, it will be harder to mount a successful fair use defense. There's no hard line here, which is why the courts take all four fair use factors into consideration.
How the use affected the work's market or value
It's difficult to claim fair use when sharing or posting someone's copyrighted work online hurt the owner's ability to market or sell their art. For instance, when you post someone's copyright-protected photo on social media, the widespread circulation of the image might fill the demand for the work and make it difficult for the artist to sell prints.
Fair use or foul play? Mitigate your social media copyright infringement risks
It's up to the court to decide how much consideration each fair use factor receives. What one court may find to be in fair use, another court may rule as copyright infringement. So instead of hoping that a fair use defense will raft you through any potential infringements social media infringements, follow these tips to minimize the risk of facing a costly advertising liability lawsuit:
Check for copyright notices before you post the image, video, or blog post.
If you're unsure about how the content can be used, ask the author. It's always better to err on the side of caution and not post something if you don't have permission to use it.
Many social networking platforms allow users to repost or retweet content on the site if the owner uploaded it.
Link to the original source of the work, rather than uploading the work directly to your social media page.
Crediting the author for the work isn't a defense against copyright infringement, but it can support a fair use defense if your actions spark a complaint.
To learn more about other risks you may come up against when marketing your small business on social media, read our post "Social media and business risk."
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