September 27, 2016

Social Media Marketing Copyright Rules for Businesses


social mobile user

If you use Facebook, Twitter, and other social media marketing tools to promote your business (and who doesn’t these days?), then you know there are social media etiquette rules that your business should follow.

Break the rules, and your marketing results will plummet.

But did you know there are also copyright rules for social media that your business needs to follow if you want to stay out of expensive legal trouble?

Unfortunately, copyright law gets a bad rap. Spend some time reading through tweets in the #copyright hashtag on Twitter, and you’ll see one angry tweet after another from people whose YouTube videos got taken down due to copyright complaints.

Yes, copyright laws do need to be updated to better address the digital world that we live in today (the U.S. Copyright Law hasn’t been revised since 1976), but whether or not you agree with the law, you have to follow it.

With that in mind, here are some tips to help you follow the most basic copyright rules when you promote your business online and engage with people through social media marketing.

1. Assume Your Use is Not Covered by Fair Use

Fair use is a sticky, cloudy, messy, confusing, insert similar adjectives of your choice, slope. Fair use was created to allow limited use of a copyrighted work for reasonable purposes without having to actually get the owner’s permission to use it. Fair use doesn’t mean free use.

There is a four-part test that is typically used to determine if use is fair use or not. Ask yourself these four questions before you deem your use of someone else’s creativity to be fair use because not only might the owner disagree with you, the law might disagree, too:

  • What is the purpose and character of the use of the work?
  • What is the nature of the copyrighted work?
  • What part of the work was used compared to the whole?
  • What is the effect of the use of the work on the potential value or market of the original copyrighted work?

Be careful because even the four-part test can get a bit muddied and subjective when it’s interpreted in real-life situations. This is a lesson that many bloggers have learned the hard way over the years when they received the Getty Images Demand Letter.

2. Make Sure You Own It (or Have Permission to Use It) before You Publish It

Owner and author (or creator) are not the same thing, and the difference between owner and author can mean the difference between your getting into big and expensive trouble or not.

Your business owns creative works that your employees create while working for your company. Your business does not own creative works that freelancers and other contractors create for you unless you have a Work-Made-For-Hire-Agreement in place with them that identifies you as the owner.

Furthermore, your business is not the owner of creative works that you license from the respective owners. For example, if you purchase an image through a stock photo website to use on your blog, you’ve been given permission to use it in very specific ways through a licensing agreement. Read that agreement thoroughly so you don’t violate the terms!

3. Don’t Fight the DMCA, Understand It and Abide by It

The Digital Millennium Copyright Act (DMCA) provides a safe harbor to online service providers (including Web hosts and social media sites) so their liability is limited if one of their users publishes content that is a copyright infringement. Under the DMCA, online service providers must take down content that could violate a copyright when the copyright owner sends a take-down request.

This is what’s happening to all of those YouTube users who are complaining on Twitter, but what they don’t understand — and as a business owner, what you must understand — is that there is a process to respond to the take-down request if you believe you have not infringed on someone else’s copyright. If there wasn’t an infringement, then by all means, you should respond.

Additionally, if someone publishes your content or other creative work without your permission, then you have the right to send a DMCA Take-Down Request to the online service provider too. It’s your responsibility to police and enforce your copyrights.

4. Beware of Creative Commons

Creative Commons is a nonprofit organization that was created to provide creators of original works an easier way to give others permission to use their original creative work than the U.S. Copyright Law allows. But there are problems with Creative Commons, and those problems can be very expensive to your business.

Most importantly, if you use an image or creative work with a Creative Commons license on it, the person who applied that license might not actually be the copyright owner. That means the Creative Commons license is meaningless and you could be infringing on the owner’s copyright if you use it in your social media marketing.

Furthermore, the Creative Commons organization absolves itself of any problems you might have with its licenses in the future within its terms of use. If something goes wrong, you’re on your own, and since Creative Commons has no legal significance, it won’t help you in a legal battle.

5. Get Federal Copyright Registration for Your Creative Work

You become the copyright owner of your work when it’s fixed in a tangible medium (assuming it’s copyrightable), but when your work is federally registered, you can enforce your rights under federal copyright laws. No, you don’t have to register your work to own the copyright, but doing so turns your rights into federal statutory rights, which means your rights are enforced under federal law statute — the copyright law passed by Congress.

As a copyright owner, you get a bundle of exclusive rights to reproduce your work, distribute copies of your work, prepare derivative works from your original work, perform your work, and display your work. Even if you don’t think your creative work has value today, it has tremendous potential value, and your business could lose money if someone else uses it without your permission.

By obtaining federal copyright registration for your work within 90 days of first publication (or the first time it was made available to the public), you can collect fees and damages without having to prove actual damages. This is a huge benefit to your business!

The Takeaway

Breaking copyright rules can be a very costly mistake that you don’t want to have to pay for with your time or money. It’s your responsibility to understand and comply with the law.

If you pay someone (an employee, contractor, or social media company) to handle your social media marketing activities, make sure they understand copyright laws and are following them because ultimately, your business will be held responsible for any mistakes.

Social Media Photo via Shutterstock

10 Comments ▼
Advertise Here

Kelley Keller


Kelley Keller Kelley Keller is CEO of Kelley Keller Law and a 20-year veteran of the intellectual property law field with experience helping businesses of all sizes (including many household brands) identify, manage, and protect their trademarks, copyrights, patents, and trade secrets.

Latest Trending Business News




10 Reactions

  1. Aira Bongco

    It may even be better to just stick with uncopyrighted work just to get yourself out of trouble. It can be a sticky situation to face later on if you take it for granted.

    • Agreed, Aira. Using work in the public domain or work with very clear permissions, e.g. royalty-free images from a credible website, is the safest bet. However, being educated about copyright and how it affects your business will give you more flegibility without fear of getting into trouble!

  2. kelly, I have been told through readytoshare.org that courts say that the apparel industry is to utilitarian. what is your comment on this? Basically the source above said that the courts say the apparel business’s does not need anymore intellectural property protection. To give an example…Budweiser. There are currently a belly band out their for dogs that says Buttweiser and the logo image of Budweiser and this is okay to do so long as you are making fund of it, yes?

    Second question, so I have an e-commerce business selling doggie apparel and accessories. My products come from varies business partners I do business with on a day by day basis. Some of these individuals are reluctant to sign any legal document that we had our attorney draw up-giving our business permission in using their photos that they have agreed to sell us so we can sell on our e-commerce store? what would your response be to them and should we not do business with those who disagree to sign our legal document for permission in using their photos? Those who refused to sign our legal document were okay with simply sending us an email stating that it’s okay for us to use their images on our website and social media. Would this be sufficient enough in protecing us? What are some of your suggestions?

    Thanks!

  3. Wow copyright is a complicated and confusing subject. Thanks for the plain English information.

  4. It’s great to have guides like this one when it comes to copyrights because it is indeed a tricky subject. For bloggers who use free stock photos, it won’t hurt to double check the CC license of an artwork. Most of the time, artworks from free stock sites don’t need attribution but sometimes they do… same goes with Flickr images labeled for reuse.

  5. Thanks, Mariel, for your comment. An ounce of prevention is always worth a pound of cure. CheckIng and double checking that you have permissions to use third party content is great advice!

  6. I agree that using uncopyrighted work is the best way to stay out of trouble. It’s tough though because the good stuff is all copyrighted. That’s why I read those agreements twice. Takes longer but I sleep better at night 🙂

Leave a Reply

Your email address will not be published. Required fields are marked *

*



Looking for templates, checklists or guides? The Small Business Resource Center has them!