The Small-Business Owner's Guide to Advertising Injury

Chapter 4: Copyright Laws & Social Media: A Small Business Guide
Part 2: Fair Use and Social Media

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.
  • Research.

The Four Pillars of Fair Use

To determine whether the reproduction of copyrighted material constitutes fair use, a judge evaluates the use based on the following four criteria:

  • Purpose and nature of the use. Fair use was designed to protect certain instances of 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. If the work is unpublished, out of print, or confidential, the fair use defense may not apply.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.

For a clever example of fair use in action, check out the short video A Fair(y) Use Tale (Not a Disney Movie), which uses brief clips from Disney movies to explain how fair use works — making the video itself, of course, an example of fair use.

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 save you if you're charged with copyright violations, 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 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.
  • When you want to share copyrighted material that other social media users are circulating, read up on the site's terms of use. 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.

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 are a few potential outcomes:

  • Nothing. The smaller your fan base, the less likely you are to suffer any consequences, even if you blatantly break a copyright law.
  • Legal contact. 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.
  • A lawsuit. 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.

You can learn more about copyright lawsuits by jumping to Chapter 6: The High Cost of Advertising Injury Lawsuits.

Next: Chapter 5: Social Media Liabilities: Your Employees, Fans, & Enemies

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