Under the U.S. Copyright Act, artists are legally allowed full control over their work. While the act is very detailed in who can use what when it comes to another’s work, the act largely offers artists protection and control over their work.
Legally, artists and creators are the ones who call the shots on who can reproduce a work (make copies of it) and distribute those copies. They also have the final say on who can create different variations of their work. This is mostly practiced in the music industry when an artist gives out permission for another artist to use snippets of their music or create a new variation through a remix or collaboration. The Copyright Act also determines where and who can publicly display the work, whether it be a sculpture, painting, or anything else in a fixed, tangible form.
While there are black and white details outlining the many ways an artist has control over their work, the rapid growth of social media has complicated the rights of artists as copyright infringements over someone’s work are not only taking place at rapid rates, but the infringements happen faster than an artist can keep up with contacting those entities to stop the infringement. In some cases, the infringement has not entity associated with it because it’s been reproduced and circulated so many times over online (think a popular meme or saying). Social media platforms like Facebook and Twitter as well as e-commerce sites like Etsy and Amazon have made it incredibly difficult for artists to retain ownership of their work too because of the rapid infringements that take place on those sites.
So when this happens, the question becomes, who is held liable? Unfortunately, the answer can be just as complicated.
Can Artists Sue Social Media Companies?
If an artist uploads an image or a copy of their work on a social media platform and another user (or a couple hundred) downloads that copy and re-purposes that image for monetary benefit, can the social media platform be held liable? Well, the short answer is no, not really. The rise of social media has made the nuances of copyright infringements something so unavoidable yet practically impossible to solve. Let’s look at some of the reasons why.
Who Owns the posts on your Social Media?
When you upload your work on social media, whether it be an image, a photograph, or a song, you still retain ownership of that work. However, all social media platforms require users to sign what is known as a “click wrap agreement.” These agreements are the terms and conditions that stipulate the relationship between you the user and the platform. In all click wrap agreement, there is a clause in which you, the user, enter into a licensing agreement that allows the platform to use your work in ways they see best fit.
One of the main ways social media platforms use the content that you, the user, posts on their site is for advertisement purposes. For example, if you post a short video on Tik Tok and that video goes viral, the platform can use your video in a commercial without needing to consult you, let alone compensate you for it. This is because you have licensed out the work to Tik Tok once you clicked “I agree” in the click wrap agreement. Although you are still the owner of that content, your licensing agreement limits the way in which you have control over it. This licensing agreement is also what keeps you, the user, from being able to pursue legal action over copyright infringement.
What If Another User on Social Media Uses My Work?
What if a user on a social media platform repurposes your work, does copyright infringement take place in that instance? Well, depending on the situation, the answer might be, yes. In some cases, you might even be able to pursue legal action and claim monetary damages. While you have entered into a licensing agreement with the social media platform, this does not mean you have entered into an agreement with all the users on that social media platform.
Unfortunately, this also does not mean you can go after the social media platform because this infringement has taken place. While the rapid rate of information exchange on social media can help perpetuate copyright infringement and even allow others to infringe on your copyrights, social media platforms cannot be held responsible for this. This protection that social media platforms enjoy stems largely from the Digital Millennium Copyright Act. This law essentially protects social media platforms including Instagram, Facebook, and all others from liability if their users violate another user’s copyrights. While social media platforms largely perpetuate the flow of information that naturally encourages violations of copyrights, the law was enacted to protect this free flow of information.
Volvo Battles Copyright Infringement Over Instagram Post
One of the more recent cases that highlight the nuances of social media and copyright infringement is the 2020 case in which popular brand Volvo was sued by photographer Jack Schroeder and model Britni Sumida. The pair argued that the car company violated their copyrights after Volvo used their photograph which was initially shared on Instagram. Volvo also tagged their website on the image which led back to Volvo’s website.
In September a judge shot down the car company’s motion to dismiss the case. Volvo explained in their failed motion that Schroeder granted an implied license because he shared his work on Instagram.
The case of blatant copyright infringement serves as a perfect example of how just because something is posted online, it doesn’t give free license to anyone, especially a large company like Volvo to use the work as they please.
When In Doubt, Don’t Post
While there are very few legal outlets in place for artists to pursue when it comes to going after a social media platform for copyright infringements, there are some things artists can do in ensuring their copyrights stay protected. If you are an artist, consider the following:
- If you are going to post work and your livelihood depends on your copyrights, then consider registering your copyright with the U.S. Copyright Office. By registering your copyrights, you can provide yourself additional protection in case your situation leads to legal action.
- If you have work that you know you want to use in a commercial capacity, consider whether or not you should post it. Posting it makes it available to the world and more than often than not if your work gets infringed upon, it can be hard to reign the work back in. In many instances, you will lose out on profit that you would have otherwise gained if you had not posted the work.
- If you do need to post your work, consider posting it on your personal website first and then sharing a link to your website on your social media platforms. If infringement does take place, this allows you a better digital trail to follow if you need to.
While the world of copyright law has largely stayed the same, the reality is that legislation clearly cannot keep up with the changing digital landscape that has made copyright infringement more rampant than ever. What has remained the same is the power of knowledge. Understanding how the digital world, the internet, and social media platforms impact your copyright protections is the first and best level of defiance in protecting your copyrights.