It is inevitable that soon after you’ve established a substantial following, third-parties will emerge from the woodwork and attempt to enforce rights in their own works and to infringe on your intellectual property ("IP") rights. There are, however, steps to take to mitigate such risks, including securing copyright registration and assignment or license of copyrights, registering trademarks and social media handles, establishing terms of service and privacy policies, and understanding the rights you’re giving up by posting to social media sites.
1. Protecting Your Social Media Images Through Copyright (and Respecting Watermarks and Likenesses)
By posting original content to social media, an influencer can make the positive step towards exercising rights over his or her intellectual property. Keep in mind that when posting the content of others, the poster risks infringing copyright, and other intellectual property rights.
The Copyright Act protects “original works of authorship,” like photography and literary works. Copyright rights, and other intellectual property and related rights, may be present in published selfies, blog posts and photos, to name a few. The owner of the copyright has certain exclusive rights, including, public display of the work, distributing copies to the public, reproducing the work, preparing derivative works, performing the work publically, and authorizing others to partake in these rights.
Conversely, the Internet is not the “public domain.” A social media influencer faces the risk of infringing on someone else’s copyright by posting works that belong to others – whether it be photos taken from Google images, lines of script taken from movies, sound bites from songs, graffiti art, or video clips. The rule of thumb is to seek authorization before posting if it’s not something you created.
Own Your Work/Secure a License: If you aren’t taking the photos, securing an assignment or license is necessary. Photographers are authors that create and publish original artistic works. Social Media Influencers utilizing photographers should secure assignment of all rights in the copyright via express assignment or a work for hire agreement.
Respect Watermarks: If you are posting an image found online with permission, do not remove any identifying logos or watermarks. It is illegal to remove or alter copyright management information. Various celebrities have felt the sting of the law, by doing just that.
Rights to Use Another’s Likeness or Image: In posting an image of another person’s face, name, or likeness, you should obtain written permission for the use. Whether a use requires permission can hinge on how identifiable the person is (i.e. a portrait or a crowd), whether the person’s identity is incidental or if it may be obscured, and whether the use was for commercial purpose.
2. Protecting Your Social Media Name Through Trademark
Clear Your Mark: A trademark is a word, name, symbol, phrase, or device, used to identify a particular source of a product or service, and distinguish it from another’s product/service. Clearance is necessary before using and registering a mark. A trademark attorney can assist in conducting comprehensive nationwide/worldwide clearance, including clearance of social media member names. It’s generally the norm that third-parties will come out of the woodwork once you’re famous.
Register Your Mark: One of the first questions that Facebook, Instagram and other social media sites asks is whether you have a registered trademark. You have rights in a trademark from first use in commerce, but registration offers greater rights, including nationwide rights, incontestability after five years, and others. Once you’ve cleared your mark, it is important to register your mark.
Secure Your Social Media Handle: Social media handles are generally issued on a first come, first served basis. If you have secured your trademark, you will want to reserve your social media handle as well. You may have an infringement claim if you find your trademark is already taken. However, two of the same trademarks may exist if they have distinctively different uses. Most social media sites have user-friendly infringement claim forms. Here are a few: (i) Instagram, https://help.instagram.com/contact/552695131608132?helpref=faq_content; (ii) Facebook, https://www.facebook.com/help/contact/1758255661104383; (iii) Twitter, https://support.twitter.com/forms/dmca, and; (iv) Pinterest, https://www.pinterest.com/about/copyright/dmca-pin/
Enforce Rights In Your Mark: Finally, don’t be passive about rights in your mark. You’ve earned the right to enforce against others – and not enforcing could put your rights in the mark in jeopardy. Put others on notice with a cease-and-desist, seek takedown of infringing social media names and domain names via your social media site, ISP or a UDRP, or bring an action. Federal lawsuits, although pricey, can result in injunction and possibly monetary damages for the lost profits and attorney fees.
3. Terms of Service/Privacy Policies – Know Your Rights and What You May Be Giving Up When You Post
Invest in your own TOS/Privacy Policy: Influencers should invest in TOS and privacy policies for their own sites. With back-linking and visits to your site as valuable as they are, such policies have value-added benefits, including, alerting others to proper usage of your own IP, explanation of how/if data is collected, offering licensing opportunities, discussing liability, describing the extent of your endorsements, and laying out what a user’s obligations are in terms of editing, removing, and changing material.
Know Your Social Media Site’s TOS/Privacy Policy: When utilizing Instagram, Facebook, Pinterest, Twitter, and other social media, influencers should always thoroughly read the TOS and privacy policies before posting to avoid forfeiting certain IP rights or binding your business to undesirable terms. For example, certain social media sites have terms that give the social media platform a non-exclusive and royalty-free transferable, sub-license to use images and content posted on the platforms. Here are are few links to social media policies: (i) Instagram, https://help.instagram.com/478745558852511; (ii) Twitter, https://developer.twitter.com/en/developer-terms/agreement-and-policy; (iii) Pinterest, https://policy.pinterest.com/en/terms-of-service.
Display Copyright Notice: Use of the copyright notice, although not required under current U.S. copyright law, is recommended as it is an express notice of the influencer’s rights in the original works. Copyright notice should be visible to anyone and found at the bottom of every page. The notice can include the copyright symbol (“©”), the year of first publication or post, and the copyright owner’s name.
4. Fair Use Defense
Fair use under copyright and trademark law can be valuable defenses to a third-party claim of copyright: Fair use is a defense to a third-party’s claim of rights in IP not an affirmative right. Such a defense may arise only after you receive a cease and desist, a complaint, or similar. Under the copyright fair use doctrine, a person may use copyrighted material without permission for the purpose of criticism, parody, comment, news reporting, educational matters, or research. Fair use defenses often hinge on the purpose of the use, whether the use was profitable, the nature of the work, the proportion of the work used, and the effect of the use on the value of the work. Keep in mind that, among other things, the profitability of your site or blog may come into play when arguing fair use. Consult an attorney before deciding whether fair use is a valid defense to a post.
Trademark fair use is also a defense and comes up when you use a mark descriptively and “nominatively.” Is the mark descriptive of the good or service your discussing or is it the actual brand? If the former, then you may have a defense. Nominative fair use serves as a defense where use of the trademark is absolutely necessary. For example, if use of the product name is the only way to describe it, then you may have a defense.
For questions related to any of the above, or other issues surrounding your social media, please feel free to contact Scott directly at scott@sisunlaw.com.