#socialmediasavvy: social media and copyright law, how does it work?

Article written by: Natalie Harre    |   Thursday 15th December 2016

The rise of social media has brought with it new challenges for copyright.  Online content, particularly photographs and images, may be posted for anyone to view but does that mean the content is freely available for others to use?


ATTENTION all bloggers and social media users – you may be up to speed with #hashtagging, boosting your online reach and the best angle for a selfie but do you know your copyright rights and wrongs?

It’s a common misconception that online content, particularly photographs and images, are in the public domain and therefore available to use.  However content published online is still protected by copyright law and people need to be careful about copying and reposting photographs/images without permission. 

It may seem socially acceptable to copy and repost another user’s photograph on Facebook or Instagram, particularly if you acknowledge the source and tag them into your post, but just because a lot of people do it that does not necessarily make it OK.  To be clear, we are talking about copying someone else’s photograph and using it within your own post, not merely providing a link to the other user’s original post (eg. clicking “share” on Facebook).


Copyright – a very quick 101

Copyright protection applies automatically upon creation of an original work and protects, among other types of works, literary works (eg. written blog posts) and artistic works (eg. photographs).

“Originality” merely requires that the work is not copied from another person and that it results from the author exercising independent skill and labour.  In the case of a photograph, as soon as the photograph is taken it is an original work and automatically protected by copyright.  In New Zealand, under the Copyright Act 1994, the owner of that photograph has the exclusive right to copy, sell and communicate the work to the public as well as the exclusive right to authorise others to do the same.

Copyright protects the expression of ideas or information − not the ideas or information itself.  So, for example, if you write a blog about the best hair styles for summer weddings, the words you actually write are protected but not the idea of writing about hair styles.  That being said, not all written works attract copyright protection – names, titles, single words and headlines are usually too small or unoriginal to be protected by copyright.


But aren’t all images online in the “public domain”?

NO!  “Public domain” refers to a work which is no longer protected by copyright – either because the period for copyright protection has expired or because the owner has released the work from copyright making it freely available for all to use.  Unless you have reason to believe otherwise, you should assume that anything you find online is protected by copyright.


What about Instagram and #regram – that’s ok right?

A “regram” is when an Instagram user posts a photo from someone else’s Instagram account to their own account.  “#regram” is used to indicate that the image is a repost from another account.  Given there is a specific term and hashtag, people might be forgiven for thinking that usual copyright laws don’t apply to Instagram posts – they would however be wrong if they think that. 

Copyright protection still applies to Instagram photos.  This is made clear in Instagram’s Terms of Use and Community Guidelines – the guidelines clearly say to post only photos and videos that you’ve taken or have the right to post.


What should you do?

The best option is to always create your own content and take your own photographs.  But if you do want to use someone else’s photograph then it’s simple – ask for permission!  Getting consent from a user can be as easy as a comment underneath the photo itself.  In many instances, the other user will be happy for you to use the photo provided you credit them as the original source and tag them into your post.  If you ask for permission and do not receive a response – take that as a NO.

There are also instances where users post photographs and give implied consent for the photo to be reused by others.  One example is using a specific hashtag related to a specific campaign.  For instance, Coca Cola’s “Share a Coke” campaign encourages users to post pictures of Coke bottles and other Coke products labelled with #shareacoke.  Similar examples are Calvin Klein’s #mycalvins and Red Bull’s #putacanonit. Corporate campaigns like the ones just described are often marketed with details describing the brand’s intended use for the photographs.  You can see how in that situation anyone tagging their photograph with a specific campaign hashtag has arguably given implied consent for the brand to copy and use the photograph in other ways (eg. on the brand’s website).

Some social media users can act in a way that causes uncertainty in respect of copyright.  For example, if a user regularly comments positively on reposts of their photos by followers, then followers might assume that the user always permits reposting.  Similarly, a user who often reposts other user’s photos without permission may not be in the best position to object if one of their photos is copied and reposted.  Again, their conduct suggests they encourage or at least tolerate such conduct. Getting express consent is obviously better than relying on implied consent – so, if in doubt, ask permission.


What might happen if you repost an image that doesn’t belong to you?

Without permission, you put yourself at risk of litigation.  At the very least the owner has the right to ask you to remove the image.

Social media is a popular and useful business tool – a lot of people advertise through social media and make a living from their social media accounts.  Amateurs with small followings may be thrilled for the exposure and increase in followers which results from reposting, but established social media moguls and those who use social media professionally are more likely to consider legal action.  If, for example, you copied and used a professional photographer’s photo without permission then they would be entitled to seek monetary compensation from you which could be calculated based on the fee they typically charge for a photoshoot and how much they sell their photos for.  That’s a potentially expensive mistake you should avoid making.

An innocent copyright infringement is still an infringement.  While in most cases the worst that might happen is a demand for you to take down the photograph, you may face more serious consequences, especially if you use the photo for commercial purposes.


Guidelines

  1. Create your own content! 
  2. If it’s not yours, ask for permission.
  3. Even when you have permission – make sure you acknowledge the source.
  4. Don’t screenshot or crop someone else’s photograph unless they say you can.  If you want to repost, and have permission to do so, ask the owner for the original image so you don’t put up something of inferior quality.
  5. If you do repost someone else’s photo and they ask you to take it down – then take it down!

Copyright law may seem somewhat out of touch with social media interactions and practices but it’s still the law and social media users should think twice before reposting someone else’s work.  

If you have any queries about the use or misuse of your copyright images, or require assistance for any other intellectual property dispute, please do not hesitate to contact us


This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.

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