Fair Use and Fair Dealing in Social Media

Fair Use and Fair Dealing in Social Media

by Brette Sember, Esq., February 2019

When you create a work of expression in a fixed manner, such as a photograph, meme, poem, or song, you own the copyright to the work. Social media is not an exception to copyright: you still hold the copyright to items you post on networks such as Facebook and Instagram. The reverse is also true: you cannot post someone else's copyrighted material on social media without permission. However, there are some exceptions when usage falls under the criteria for fair use or fair dealing.

Exceptions to Copyright

You own the copyright to the work you create from the moment of its creation and, for the most part, no one can use your work without obtaining your permission. However, U.S. law has some exceptions that do allow your work to be used without your permission. This is called the fair use doctrine.

There are four main factors that are considered when determining if a use is copyright infringement or if it falls under the fair use doctrine:

  • The purpose and character of the usage. This factor looks at whether the use is for a commercial purpose or whether it is primarily educational. Educational uses are more likely to be considered fair use, so posting a brief excerpt from an academic journal on a college class website would most likely be acceptable.
  • The nature of the copyrighted work. A quote taken from a textbook and shared in an online study group would be more likely to be fair use than posting someone else's cat video on your personal feed because the textbook, but not the cat video, is educational in nature, as is the use.
  • How much of the work is used in relation to its length. A 10-second clip of a two-hour movie posted on Instagram is more likely to be considered fair use than reposting a full three-second meme because the former is a smaller percentage of the overall work.
  • How the use impacts the market or value of the work. If a reuse makes it harder for the creator to sell or license the work, it's likely not to be fair use. For example, pasting the entire text of a blog post on your Facebook timeline might cause the author to lose clicks or traffic and may also make it harder for the author to resell that work elsewhere, which would make the situation fall outside the criteria of fair use.

A part of the purpose and character of the use analysis has to do with whether the use is transformative, meaning it changes or adds to the work instead of just reusing the work as is. Posting a one-minute clip of a comedian's standup act on Facebook is not transformative. However, if someone took a one-minute clip from the same standup act and animated it with drawings and characters that took the bit to another level by adding meaning and nuance, that might be considered a transformative use.

Fair Dealing

While the U.S. relies on the fair use doctrine, other countries such as the United Kingdom, Australia, India, and Singapore use a similar doctrine known as fair dealing. Although the basic concept is the same, there can be differences in the details. Such laws are also generally not quite as expansive as the U.S. doctrine.

Because social media has worldwide reach, it's important to understand the implications of fair dealing as you may be interacting with people from other countries and with copyrighted work that originates in another country. When you are using work that is covered by copyright laws of another country, fair dealing laws usually apply.

Social Media and Copyright

When you post your creative work on social media, you continue to own the copyright if the work is eligible—tweets on Twitter, for example, might not be. No one can use the work without your permission, nor does the platform take ownership. However, there is an exception: by posting on a platform such as YouTube or Twitter, you are agreeing to the site's terms of use, which often give the site a license to use your work. More importantly, you are also allowing other users to share the work within the platform (if your settings are configured to allow shares). As a user of social media, you need to understand the terms of service you are agreeing to and then comply with them.

Posting your work on social media does not mean that others can use it without attribution. For example, if you create a meme and post it to Twitter, other users can retweet it. However, if someone merely copies the meme, without attribution, and posts it on their own feed or even somewhere outside of social media, it does not automatically constitute fair use and most likely does not comply with the terms of service for the platform.

It is also important to understand that you cannot post a copyrighted work to a social media site without permission. Courts have held that the mere act of posting a photograph online, for example, is not transformative. Users should post only creative works that are in the public domain, works that qualify for fair use, works for which they have received permission to post, or their own work.

Because a copyright is created as soon as you produce a work, you do not have to post a copyright notice with your work. However, if you are posting work to social media, it can be useful to include a copyright notice, such as ©2019 Bob Jones, as a reminder to other users that you own it.

Because copyright and social media is an evolving area, it's important that users pay attention to changes in the law. To protect your creative interests, registering your copyright is advisable.