United States: Comparing Social Media Intellectual Property Policies: Part 2 – Social Media User Agreements

Last Updated: November 18 2016
Article by Shannon V. McCue

Social media users come in all shapes and sizes, ranging from individuals to large corporations. Users post text, images, video and sound files on social media sites. As discussed in part 1, all of this content is protected by copyright law, and in some cases other rights may apply to the content, such as rights of publicity, trademark rights and the like. The question becomes this: What rights do users have once they post content on a social media page? This article surveys popular social media user agreements with this question in mind.

Overall, as some might expect, the policies provide the social media sites broad rights to use content. In every policy, the social media site received a "worldwide, non-exclusive and royalty free" right to use the posted content. The bundle of rights granted with each license, however, varies from site to site. In the following table, we compared the specific license granted and the term of the license for several social media sites.

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License Rights:

Facebook provides a brief statement of its rights, taking only a "right to use" any content posted on its site. Since "use" is not a defined term under the copyright act, it is unclear what this "use" right encompasses from a copyright perspective. Other sites provide lengthier and more specific descriptions of the license scope, including rights to copy, transmit, distribute, publicly perform, adapt, modify, publish, transmit, display and distribute the content. Of note, some sites (Pinterest, YouTube and Vimeo) also obtain the right to make derivative works.

The concern with derivative works is that the user loses control over downstream works. These downstream works are not copies and, therefore, the user's work is subject to the editorial and creative whim of the social media sites. Moreover, since each site obtains this license royalty free, any profit from the user's work is not shared with the user. Vimeo limits the scope of its right to create derivative works by specifying that the derivative work is created for the purpose of (i) displaying the video on Vimeo, (ii) displaying it through a third-party website or allowing the users to embed the video on a third-party site, (iii) promoting Vimeo and (iv) archiving the video. Vimeo requires that the user also give other users the right to make derivative works to the extent needed for viewing the videos.

At present, it does not appear that social media sites have a strong interest in leveraging their licenses to create additional income streams. Most social media sites work on an advertising revenue model, leveraging their network of users and data gleaned from those users' interactions with the social media site. They are not in the business of selling compilations of cat videos or kitty of the month coffee mugs. If they chose to do so, the license agreements for most sites would permit the social media site to use images posted on the site on other products as a copy applied in another medium, or as a derivative work. In instances where the license extends broadly to third parties or the social media site has the ability to provide sublicenses, the social media site could sublicense its rights to a third party that is in the business of cashing in on content. This leads to the question of how long these rights last.

In all but a few instances, the rights are perpetual, suggesting that social media sites could continue to use content from user posts long after the posts have faded from memory or even when they have been taken down. Notably, Facebook terminates the license when the content is taken down or the user's account is deleted. Vimeo also terminates its license when videos are removed but retains the right to keep archive copies of videos.

Overall, users who place content on social media sites provide broad licenses to their content. For users who want to leverage the expanse of these social networks, there are benefits to placing content on social media. These benefits must be accepted with the understanding that it may be difficult if not impossible to control downstream uses of the content within the social media site and beyond if sublicenses are granted.

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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