[vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][heading subtitle=”By: Sean Lynch and Lindy Herman”][/heading][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][vc_column_text]BORING LEGAL STUFF: This piece was first published in OC Lawyer Magazine’s December 2015 issue by the same title and having the same authors. It can be found on page 34. I have added different artwork and images for my blog; these additions do not necessarily represent the views of the Orange County Lawyer magazine, the Orange County Bar Association, The Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched

Every day, Pinterest users “pin” third-party images to their “boards,” Instagrammers post or repost others’ images, redditors recycle content and bloggers grab third-party content off of the internet to illustrate their dialogue. Though it may seem harmless, many social media users are unaware that these seemingly benign activities may amount to copyright infringement.

Before diving in, a copyright crash course may help the uninitiated. Copyright law protects “original works of authorship fixed in any tangible medium of expression.” In other words, protectable work must be more than just a thought. The work must be able to be “perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Works of authorship include: literary, musical (including lyrics), dramatic, choreographic, pictorial graphic, sculptural, audio visual and architectural works as well as sound recordings. (17 USC §102 – Subject matter of copyright: In general).

A copyright owner has the exclusive right to reproduce (copy) the work, prepare derivative works based on the original, distribute copies or perform the work publicly. In the case of certain works of fine art, the copyright owner also has the right to attribution and the right to prevent certain modifications to the work. Copyright infringement is the exercise of any of these rights without permission from the copyright owner. Merely including an attribution notice (e.g., ‘repost from John Doe’) does not relieve one from having infringed.

Most social media platforms include a provision in their Terms of Service requiring users to agree that they will not post content that violates others’ rights. For example, Instagram’s terms provide in part:

You represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Use; (ii) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (iv) you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

And everyone reads the Terms of Service, right?

NOPE.

[/vc_column_text][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][heading]But Everybody’s Doing It[/heading][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][vc_column_text]Given the volume of posting that social media users engage in every day, it is difficult to believe such behavior may be unlawful. In the early 2000’s, the general public’s attitude toward file-sharing was similar. That is, until the Recording Industry Association of America (RIAA) filed copyright infringement actions to make examples of a handful of individuals caught using once-popular file sharing programs such as Napster and Kazaa. RIAA desperately wanted the public to “learn” that file-sharing is copyright infringement. In a similar move, the Motion Picture Association of America (MPAA) famously launched a video campaign memorably featuring the slogan, “You Wouldn’t Steal a Car,” followed by, “Downloading pirated films is stealing.” The video was played before feature films in theaters, and was also unskippably included on many DVDs. Unsurprisingly, these crusades did little to stymie copyright infringement. (Since peer-to-peer (p2p) file-sharing site Napster emerged in 1999, music sales in the U.S. have dropped 53 percent, from $14.6 billion to $7.0 billion in 2013. https://www.riaa.com/physicalpiracy.php?content_selector=piracy-online-scope-of-the-problem).

And with 3D printing, we’re closer than ever!

Fast forward to today; a Twitter user made headlines recently when he filed a copyright infringement complaint against Conan O’Brien, the producer of “Conan,” as well as the station and network that air “Conan.” (Kaseberg v. Conaco, LLC et al. U.S. Dist. Ct. Southern Dist. Cal. 3:15-cv-01637-JLS-DHB filed July 22, 2015). The plaintiff alleges to have posted several jokes on his blog and Twitter account, which were used by the late night host. Claiming copyright on those jokes (as literary works), the plaintiff alleges his copyrights were infringed when Conan repeated them during his monologue.

Around that same time, another Twitter user made news when she took a different approach to protect her jokes: the Digital Millennium Copyright Act (DMCA) take down notice. Notably, the bar to initiate a DMCA takedown request is low, and the take down request system is easily abused. This Twitter user claims to be a comedy writer who tests her jokes on Twitter. One particular joke proved to be rather popular. Twitter has removed several users’ tweets containing that joke and replaced those tweets with a notice stating that they have been withheld in response to a report from the copyright holder. (https://twitter.com/runolgarun/status/624971697075019776/photo/1, pictured right)

Setting aside whether jokes are protectable under copyright law or not, these Twitter users may serve an educational role. They are not the first, however, to enforce copyrights against social media users.[/vc_column_text][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][heading]But It’s Fair Use[/heading][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][vc_column_text]

After “but everybody does it,” the next most common reaction to an allegation of this type of copyright infringement is “but it’s fair use.” While “fair use” is a defense to copyright infringement, the term has a very specific meaning. There is no clear rule as to when use (in this case, copying) of a copyrighted work without permission is fair use. Instead, several factors are taken into consideration: the nature of the copyrighted work (e.g., repetition of factual works are more likely to be fair use), the purpose of copy (e.g., news reporting, commentary or parody are more likely to be fair use), the amount copied (e.g., the less that is copied, the more likely it is to be fair – unless the “heart” of the original work is the copied portion) and whether the copying will affect the market for the original (e.g., if the copy is for commercial use, the less likely it is to be fair use).

For the individual posting, reposting, pinning and tweeting, there are some blurry lines that make the already nebulous fair use distinction even more difficult to determine. For the sake of discussion, let’s put social media users into two categories: people who use social media as a diary and people who use social media to develop a career or business. People in the first category generally share things they find amusing, or pin pictures of food they want to eat. Their use is very surface-level, and likely falls within the category of fair use. People in the second category, however, may not be using copyrighted material fairly. For example, let’s say a fashion blogger runs an Instagram account with 500k+ followers. Through that Instagram account and the associated fashion blog, that person is bringing in hundreds of thousands of dollars a year in income from affiliate programs alone. So when someone reposts a photograph of a purse with the goal of sparking sales, there is a much stronger argument that their reproduction of the copyrighted work cannot be classified as fair use.

Corporate marketing via social media also has risen exponentially in the past decade. In promoting a business, companies often tag photos on Instagram, like Facebook posts (or request users to like them), or pin photographs to Pinterest boards. Because such use is commercial in nature (in that it is in furtherance of their business objectives), there is little likelihood that a fair use defense will apply.

Numerous companies, particularly travel agencies, found this out the hard way when photographers Vincent Khoury Tyler and Vincent Scott Tyler sued companies who pinned, posted, or otherwise used photographs of Hawaii, to which they claim copyrights.

[/vc_column_text][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][heading]Takeaways[/heading][/vc_column][/vc_row][vc_row type=”in_container” scene_position=”center” text_color=”dark” text_align=”left”][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/1″][vc_column_text]

Publicly available does not equate to public domain, and thus use of third-party materials — in social media or otherwise — without permission creates exposure to a potential copyright infringement claim. The dichotomy between the purpose of social media (to share) versus intellectual property rights (a limited monopoly on one’s creative works) does not appear to be on the near horizon. In the meantime, social media users should consider the source of the content they share and remember that a little common sense goes a long way toward avoiding trouble.

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