Copyright issues for social media

Social media is becoming a vital part of marketing strategies in businesses bothlarge and small. Connecting with customers is the new expectation.But how this trend affects both the creators of original content and those who choose to repost or retweet something that wasn't their creation—remains to be seen.

by Renee Hykel Cuddy, Esq.
updated May 11, 2023 ·  4min read

Today, every social media user is a publisher of sorts and many publish without consideration of existing copyright laws. Social media has transformed our means of communication by providing instant information to publish and publicize almost anything. In addition, social media provides marketing opportunities for instant, mass publication of content, including everything from tweets, photos, blogs and links to content. If social media is a part of your business strategy, here are a few things to consider.

Posting original material in the Twitter-verse

An estimated 75 million users are on Twitter worldwide—that's a lot of eyeballs. Businesses are recognizing the opportunity to connect with potential customers. With that much content being generated, it's raising some interesting questions regarding copyright and intellectual property. Ultimately, the question of whether or not various tweets can be protected comes down to the legal answer of “it depends.”

It may be possible for some original tweets to receive copyright protection. The basis for protection lies within the notion that a copyright guards an author's interest in an original work that has been fixed in a tangible medium. Although it is difficult for a single tweet to receive a copyright, it is not impossible. Generally speaking though, the shorter the material submitted, the greater the originality has to be in order to obtain a copyright.

Within that vein, consider “$*!& My Dad Says,” which started as a series of tweets (within a unique Twitter account) a young man wrote quoting lines from his father. The author was able to turn his tweets into a book and eventually a TV series starring William Shatner.

Other barriers that limit copyright protection for tweets include the fact that most tweets are factual statements, and generally facts cannot be copyrighted. There are exceptions to this rule, for instance, facts can be copyrighted in a particular expression such as news stories or textbooks—but with a 140-character limit, this seems unlikely for a specific tweet.

The pitfalls of reposting or repinning

Social media users should not assume that providing credit for a work or perhaps a link to a webpage avoids copyright infringement. This is not true. The holder of a copyright has exclusive rights to publish his or her work. Simply giving credit will not immunize a secondary user from a possible infringement claim.

To complicate matters, when a social media account is created, users agree to the particular terms of use of the website. These terms often include a statement certifying that the poster holds all intellectual property rights to the content that he or she is posting on the site. For example, Pinterest's terms of use include the following provision:

“Your Content. Pinterest allows you to post content, including photos, comments and other materials. Anything that you post or otherwise make available on our Products is referred to as 'User Content.' You retain all rights in, and are solely responsible for, the User Content you post to Pinterest.”

By agreeing to such terms, social media users take on the liability for an infringement claim, which may be brought by an author for content that users post. That's not to say the social media providers are off the hook entirely, but they are learning to protect themselves more and more.

Reportedly, Pinterest attracted more than 10 million visitors in one month, relying heavily on copyrighted material to generate traffic for its site. Although many Pinterest users give credit to the original author, giving credit is not the same thing as having permission. It's a fine line between original artists who crave the increased publicity, and websites that make money by selling works of authorship such as stock images online. Social media users, both in the professional and private realms, need to understand what might be at stake when a photograph or other work of authorship is repinned.

Social media companies exposure to copyright infringement claims

Though this is a developing area of the law, it would appear social media companies may indeed be held accountable for the actions of their users. For example, when a Web-based service encourages copyright infringement, the company opens itself up to claims.

Alternatively, some original authors would rather have their works posted by users of social media as it increases their exposure—and in turn, increases their sales. Many businesses are all too happy to see their products reposted in social media outlets. And some writers may encourage links to their articles, posted in the hopes of being commissioned for other work.

Social media is still in its infancy with its rapid growth largely occurring in the last 10 years. Whether you are frequently posting or reposting on these sites, it's becoming increasingly clear that the power of your click goes beyond something so seemingly simple. Social media users need to be aware that there are consequences, both good and bad, to marketing within this medium. A cogent plan outlining a strategy, and, more important, specific guidelines for use, can be helpful in protecting against unwanted situations.

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Renee Hykel Cuddy, Esq.

About the Author

Renee Hykel Cuddy, Esq.

Renee Hykel Cuddy is an immigration lawyer whose practice is focused on helping foreign nationals obtain legal status, w… Read more

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