Taking on social media's new intellectual property challenges

Post a photo on Instagram that someone else took, and you could be hit with an expensive lawsuit. That's what model Gigi Hadid found out the hard way when, in September 2019, photographer Robert O'Neil slapped Hadid with a copyright infringement claim for a photo he had taken of Hadid's ex-boyfriend, Zayn Malik, which she shared on her Instagram account in 2018.

Intellectual property and copyright

This is just one example of the confusion about what constitutes intellectual property and who owns the copyright; that is, who owns the right to control where, how, and when works they've created—their intellectual property—are shared. Many social media users are under the mistaken impression that if something is online, it's okay to use and share. And, given that so much of social media content is visual, it's not surprising that lawsuits over photographs are occurring.

What may be surprising is that this isn't the first time Hadid has been sued for unauthorized photo sharing—it's actually the third. The first two times, she posted photos of herself on Instagram and Twitter that she did not have permission to share. The first case was settled, and the second was dropped after it was discovered that the photo agency hadn't filed the appropriate paperwork to assert its ownership.

While it may sound odd that Hadid needed to ask permission of a photographer to post photos of herself, the fact is that creative works, including photos, videos, music, motion pictures, articles, books, and art, are owned by the creator of that work unless they sell or give those rights away.

"The moment you create the work or fix it in tangible form, you own the copyright," explains Abe Cohn, managing partner at Cohn Legal, PLLC. In this case, photographer O'Neil took a photo of Malik and has the right to control who uses it. Hadid apparently didn't ask or pay for permission, so he's suing her.

Where O'Neil's lawsuit is proceeding—while the second suit, filed by photo agency Xclusive-Lee, is not—hinges on a key step in the copyright protection process. O'Neil presumably registered his copyright claim to the photo he took of Malik, whereas Xclusive-Lee had not done the same for its photo of Hadid, which is why the lawsuit was dropped.

Enforcing a copyright claim

Your copyright exists as soon as the covered work is created. However, copyright laws are unenforceable until a copyright is registered with the U.S. Copyright Office, says Cohn. To determine which of your copyrighted materials should have the protection that registration provides, Cohn recommends asking yourself, "What would I hate to see on someone else's wall" or in someone else's news feed?

So, maybe that cute photo of your dog you took last week for your own enjoyment doesn't need to be officially registered, especially if you don't care if friends and family share it.

But, if you developed a saying with a painted background for your business that perfectly expresses your company's brand message, having other people reuse it could be damaging to your business. That's a copyright—and/or trademark—that should be registered. Then, if you discover that others are reposting your intellectual property, you can take action to stop them.

Protecting your work

If you discover that your registered work is being shared on social media without your permission, the first step is to send a cease and desist notice, says Cohn. Then, depending on the site or user, you also can demand payment.

Whether to ask for compensation typically depends on who shared it and for what purpose. If a student shared a drawing you did, you might simply ask them to take it down. But if a Fortune 500 corporation uses one of your artworks in a Facebook ad campaign and will presumably generate revenue from it, requesting a usage fee may be appropriate. That's for you to decide.

And, if nothing is done following your notice, you can file a copyright infringement claim. Cohn cautions copyright owners to "choose your battles carefully." And also, to understand the fair use provisions, which may allow social media users to share small portions of your work without permission, before going to the time and effort to initiate a lawsuit.

Adequately protecting intellectual property has always been challenging, and it's made even more so in an age of increasing digital and social media sharing. Just because you can copy and paste others' creative expressions doesn't mean that it's legal to do so without their permission.