United States: Overview Of Copyright In Social Media

Last Updated: April 24 2018
Article by STA Law Firm

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"Internet is a place where nothing ever dies."

A touch is all you need to show the world your piece of art and to be liked by the viewers. Facebook posts, Instagram new filters improving your images, Snapchat 10 seconds stories to score social kudos. Endless forms and invisible impact.But the legal implication of copyright infringements on social media is more than what it was ever imagined. It's a tug of war between social media companies and the artists gaining new income by getting "Viral" or reaching millions of followers. In a continuous struggle of influencing the audience, the line of copyright infringement seems hazy and unclear. In this article, I will try to draw the line for our readers to make them understand the legal implications of stealing social media content.

The variety of content that is shared online is strictly considered as an artistic work, to which intellectual property law applies. Copyright- the right of the author over his artistic or literary work and the right to allow others to use his copyrighted work. In terms of social media images, the copyright generates once the image is posted online. The statue of Anne is the first to receive copyright protection, since then a lot of significant changes have been made concerning the copyright protection and nowadays Berne International Convention protects copyrighted work since 1971. However, we can now witness the recent copyright protection given to digital content by World Intellectual Property Organization (WIPO). The WIPO treaty signed by almost all countries is the first treaty to address the issue of digital environment and its infringement.

Social media websites stipulate terms of use that a user must strictly comply to in order to use the service, which we clearly don't read, therefore having any information about what we have signed for and are bound by the terms which we didn't even read or understand.

Thus, through this article, we will try to explore the unreconciled stress between the freedom to use and protection of copyright holders. The sole reason to write this article is to increase awareness among social media users and to provide a legal backdrop for discussion.

My Image, My Right!

New York Instagram Sensation Richard Prince reminded us that a standard picture you took at the beach, shared publicly on Instagram could be reused and sold for a price not less than USD 90,000. In New York Freeze Art Fair, Prince displayed giant screenshots of Instagram users without any prior permission and sold for a right price. So here is what he was doing, since, 1970 prince has been "re-photographing" images from magazines, books or advertisements. But, in 2008 Patrick Cariou filed a case against Richard Princeiwhen he re-photographed Cariou's image. The court of the first instance passed the judgment in Carious' favor, however, when the case went for appeal, the court ruled out the lower's court judgment in part and held that Prince's artworks make fair use of defense and he has not infringed any copyright because his work was "transformative."

It is essential for all the users to know whether if a third person is using their content from their profile, the principle of "fair dealing" may protect their usage as what happened in Prince's case. The opinion outlays numerous exceptions where the third party can utilize the copyrighted content without the author's permission such as:

  1. for critic or review;
  2. for research work;
  3. for making parody;
  4. for news;
  5. For legal advice.

A careful look into Instagram terms of use, we understand that the photographer owns an exclusive right to use, sell the image and can enforce their copyright against anyone who infringes upon your rights.The terms of use come into effect the moment a picture gets uploaded on Instagram. It provides a fully-paid, freely movable social networking stage to utilize the content in the way the user desire. It further implies that Instagram permits pictures from the site to others- including other Instagram users who can report images without encroaching on other's copyright.

Don't take a Screenshot

The United Kingdom Digital and Economy Minister recently restricted people to take screenshots of Snapchat stories. He publicly mentioned that "under UK Copyright law, it is unlawful for Snapchat users to copy or take a screenshot of the image and share it in the public domain without the sender's prior consent". Let's validate his statement by looking into UK Copyright law. The Article 96 of UK Copyright, Designs and Patent Act 1988, allows the copyright owner to file a suit against the third party and can seek all such relief by way of damages, injunctions, accounts or otherwise.

Snapchat claims that they follow a strict privacy policy, where it states that it does not condone any type of copyright infringement and if users suspect that their rights are being infringed, they have the right to report the incident to the company. However, the policy isn't that strict due to several reasons, the policy does not mention anything about removing the users who they believe are infringing copyright laws, or they can delete the provision of screenshot altogether.

Copyright V. Social Media- the Case studies

The widespread of regular practice of sharing photographs and other content has led to uncertainty regarding the ownership of those images and the violation of copyright law. This aspect of back and forth exchange of social media content has created a world where content got freely posted and viewed without any costs or charges. Thus, the free online culture created material conflicts with regards to control over reproduction and distribution. The rapid copy of original content has prompted several copyright infringement legal issues in past years.

In all of these cases, the third party contends the usage being a fair use as set out in laws of almost all the countries such as 17 U.S.C § 107. A recent case of North Jersey Media Group, Inc. v. Pirroii, where Pirro publish a photograph which was copyrighted work of Thomas E. Franklin of North Jersey Media Group Inc. (NJMG) on Facebook. NJMG got that image registered with U.S. Copyright Office. However, on account of Pirro Fox news Pirro combined that image with another and posted the same on that account. NJMG filed a copyright infringement suit against Fox News and as usual Fox News soughed defense under fair use. The Southern District Court of New York rejected Fox's argument and held that merely adding a "Hashtag" and making small alterations to the image is not sufficient. In other words, the picture failed to create new insight and understanding for the audience and cannot claim warrant protection under fair use.

The case was referred for appeal and Fox appealed to the court for "Context-Sensitive Test" and argued that social media platform is a community to share ideas and this environment is in itself a transformative expression. Also, denying social media users the right to fair use will curtail their right of expression. But, unfortunately, the thought stands still as the parties resolved the matter amicably before the court.

A similar case was filed by a photographer Kai Eiselein, where he filed the case against BuzzFeed for infringement of his copyright for an image he posted on Flickriii. BuzzFeed uses his image in an article without his permission and the issue regarding fair use principle remain unanswered in this case as well.

These cases have the ability to highlight the potential difficulty when the law tries to balance the copyright owner's right and the freedom of expression of social media users.

UAE is at par with other countries and imposes stricter punishments for copyright offenders of social media content, as recently a case filed against a teenage girl who posted a picture of her friend without taking her or her family's permission on one social media website. The parents of the girl filed a case against her for posting their daughters photograph. The defendant girl argued that she posted the picture with her friend's consent. However, upon discovering the truth the, family tried to take down the case and court rejected for reconciliation considering the seriousness of electronic crimes in the country.

The case went to the court of the first instance, where defendant girl failed to prove the consent given to her for posting such picture and was held liable for the crime and was sentenced under Article 378 of UAE Penal code for violating someone's privacy. The case is now presented in the court of appeal, and the judgment is still pending. However, any copyright infringement cases in this regard are yet to come in public domain. It is an established fact that UAE laws are stricter when it comes to assault to privacy or electronic crimes and law provides strict punishments for the offender irrespective of the age and nationality.

#New Era New Needs

Keeping in mind the pace of technological advancements around the globe and the social media content countries are either making amendments in the prevailing law or implementing new law for protecting the rights of copyright owners for content on social media websites.

The Digital Millennium Copyright Act (DMCA) of United States provides a mechanism for owners of the copyright to protect their social media content. Under the law, the copyright holder holds a right to notify the Internet Service Provider(ISP) or the Online Service Provider (OSP), once he becomes aware of the infringement. Also, the ISP allows the copyright holders to request for removal of the content, as under Section 512 of DMCA, ISP must remove the copyrighted work post receiving the notification from the copyright holder.

European countries were the first to sign the Berne Convention for protection of Literary and Artistic Works. Additionally, copyright law in Europe is implemented through directives- the legislative acts of European Union. Since the European Union follows common law and others civil law, there is no specific approach for all and the Intellectual Property directives provide the rules for regulating online content and their copyright issues.

In 2010, United Kingdom passed Digital Economy Act (DEA) for protecting and regulating online content on social media websites. DEA provides exclusive power to the government to limit and/or terminate internet services to copyright infringers. Alike, U.S. the DEA requires holders of copyright to inform the potential infringement of their rights.

UAE Cyber Crimes Law promulgated by Federal Law Number 5 of 2012 (the Cybercrime Law)penalizes the offenders of privacy on the internet including the social media websites. UAE Penal Code implemented under Federal Law Number 3 of 1980 punishes the offender who transmits someone else's pictures without their prior consent and requires the defendant to prove beyond reasonable doubt the presence of consent. Also, the Federal Law Number 7 of 2012 concerning the Copyright Law prohibits the users to share any picture of the third party without their consent. UAE government has also passed several guidelines for the public as well as governmental authorities for social media usage such as, in 2011 UAE government passed certain Guidelines for Social Media Usage for UAE government entities, also Telecommunications Regulatory Authority (TRA) passed guidelines for the public at large

It's time for the international law to cross the international territorial boundaries like the international reach of this social media content. Country-specific laws protecting online content will no longer be able to protect the author's work. Due to rapid change in the technology, the need of the hour is international treaties and laws for protecting the digital content of a copyright holder sitting in different part of the world.

Before I Sign out

In this era of technology, the copyright and other laws are blurry and are insufficient to protect the online users completely. The law is required to adjust itself quickly to frame some guidelines accepted worldwide. Under any copyright law, ignorance is never an excuse. Therefore, a copyright infringement without actually knowing its original owner is an infringement. The only remedy available with the copyright holder is to get the content removed, especially in the cases where the contents are used commercially. So, clear your doubts and know your legal rights before sharing your personal life on social media.  


i Patrick Cariou v. Richard Prince 714 F.3d 694 (2013)

ii 74 F. Supp. 3d 605 (S.D.N.Y 2015)

iii Eiselein v. BuzzFeed, Inc No. 13-13910 (SDNY June 2013) 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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