The number of users on social media is staggering. At present, there are 1.15 billion Facebook users1, 218 million monthly active Twitter users2, and 300 million LinkedIn users3. It is clear that social media is now an integral part of a business’ marketing strategy, but how do intellectual property laws relate to this relatively new form of mass communication?
This article will focus on three social media platforms: Facebook, Twitter and LinkedIn.
The main types of material posted in social media are text, photos, artwork and videos. Copyright is the main intellectual property right that is relevant to these materials. Copyright protects the form of expression, not the ideas. Thus, an article on the internet about US President Obama does not prevent another person writing a different post about Obama. It merely prevents a copying of the same words or arrangement as the first article.
What can be subject to copyright?
Many ordinary works such as business letters, labels and advertisements have been protected by copyright. Therefore copyright is likely to subsist in much of what is posted on social media, especially photographs, artwork and videos. One main exception is the very short post, which is especially an issue on Twitter, which has a 140 character limit for tweets. To determine whether copyright may subsist in a tweet, or other short post on another platform, one must look to the tests for subsistence of copyright. The work must:
- Not be copied from something else;
- Have some minimal level of literary skill, and
- Not be too insubstantial.
In Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 88 IPR 11, it was held that certain newspaper headlines (some consisting of 32 characters) were too short to constitute copyright works, although the Court left open the possibility that more substantial headlines could be protected by copyright. Thus many posts and tweets on social media may not be subject to copyright although many longer posts, and perhaps some tweets, will be. The character limits on LinkedIn and Facebook are much higher and their longer posts are likely to be subject to copyright.
Website terms and conditions
In Facebook, LinkedIn and Twitter, the author of each post retains the copyright. However, their terms and conditions provide for a very broad licence to each of the social media platforms to use the post without compensation in a generally unlimited way.
New terms and conditions for LinkedIn came into effect on 23 October 2014. This introduced a new term to the effect that LinkedIn will not include a person’s content in third party advertisements without their consent. However, LinkedIn reserves the right to place advertisements near the person’s contents.
It is possible that this new term of LinkedIn had its genesis in a dispute between Facebook and five of its users, who alleged that Facebook had shared the ‘likes’ of five users of certain advertisers – the users’ names and photographs - in sponsored stories to endorse products without their consent.4 Presumably as a result of this dispute Facebook’s Data Use Policy says:
When we deliver ads, we do not share your information (information that personally identifies you, such as your name or contact information) with advertisers unless you give us permission.
In addition Facebook’s Advertising Guidelines, addressed to advertisers, dated 4 June 2014 say:
You may use information provided directly to you from users if you provide clear notice to and obtain consent from those users …
Whether you infringe a third party’s copyright when uploading material to a social network depends on the source of the material. If it is your material and you own the copyright, there is obviously no infringement. If a business commissioned the material, one needs to look at the terms of the contract or the purpose for which the material was made. The copyright in commissioned artwork and photographs will be owned by the artist/photographer unless there is an agreement to the contrary, and they may only be used for the purpose for which they were commissioned. However, the position is the reverse with commissioned videos.
Sharing text on social media is an accepted part of social media and to do so would not be an infringement of copyright unless the text comes from a third party source. However, one does not know where other material attached to a post came from and there is the risk of infringement.
If the material is copied from somewhere else, there will usually need to be permission. In Tylor v Sevin  FCCA 445 (26 February 2014), Ms Sevin, a travel agent, copied a photograph of Hawaii from the internet and used it on her website without permission. The photographer sued and Ms Sevin was ordered to pay $23,850 plus interest, whereas if she had paid a licence fee, it would have cost her $1,850.
Hyperlinking to other material on the internet will not amount to copyright infringement, as illustrated in Universal Music Australia v Cooper (2005) 150 FCR 1. However, this case held that if the material was already infringing copyright, the hyperlink may amount to an authorisation of that infringement. So if Ms Sevin’s website had hyperlinked to the photograph of Hawaii, and assuming that the image was to be found on a legitimate website, she would not have been liable. The difficulty is in knowing whether an image or artwork has been posted legitimately.
Who owns a social media account?
Followers and contacts of a social media account can be numerous and also represent significant value. A critical issue is therefore who owns the actual account and its followers? This issue was raised in a dispute in the United States between Phonedog and Kravitz.5 In this case, Kravitz worked for Phonedog and maintained its Twitter account. During his time with the company, he amassed 17,000 followers. He then left Phonedog’s employment, changed the account handle and continued to use the account. Phonedog subsequently filed a law suit attempting to remedy the situation.
If the Phonedog v Kravitz case had happened in Australia there would be two potential areas of legal protection:
- confidential information, and
- the employment contract.
The password on the account may be confidential, and information on the account (such as contacts or followers) may be confidential depending on privacy settings. A public list of followers is not confidential.Therefore confidential information may provide some protection.
Alternatively, for staff who are dealing with a company’s social media accounts, it should be a term of their employment that the social media accounts are those of the employer, and their duties in relation to the accounts should be set out. There should also be an obligation to cease using the accounts on termination of employment.
However, these causes of action, whilst giving a potential remedy against an ex-employee, may not prevent the problem from arising. Practical measures of protection are undoubtedly the best. More than one person in the office should know the social media passwords. Once an employee with access has left, the password should be changed to lock that person out.
While copyright law overlays social media,it can often be disregarded. However to do so may mean that you are at the end of a letter of demand.