Social media is an unchecked wild fire that burns throughout society. Whether the motivation is pure entertainment, the ability to connect and interact, or perhaps the promise of fame and fortune, children and adults flock to the various social media outlets and pour content in. This content, whether created by the user or obtained from another source, is subject to copyright law and may touch on other property rights such as trademark, publicity or privacy rights. In addition, other regulations apply to govern posting of sponsored content. Finally, end-user agreements that are given about as much attention as the wrapper on a candy bar often govern disputes over these rights. These agreements also address the consequences for improper or unlawful conduct and the rights of the social media site to make additional use of posted content, user interactions and data obtained therefrom. Apart from the individual user, corporate users must consider the implications of employee-posted content, sponsored content, third-party posts or interactions with their social media, and infringement of intellectual property rights.
The following series of posts will look at the current legal landscape on popular social media sites to better understand the rights and ramifications relating to their use. This post starts with a comparison of intellectual property provisions in Facebook, Pinterest, Twitter, YouTube, Vimeo and Instagram. Additional posts will look at the user agreements to see what rights users have when they post material, and what rights the social media sites obtain in posted content.
As outside counsel, we are often called on to address these issues when clients find their protected material posted by third parties or when another party has complained that their protected material has been posted by the client or its employee. Usually, we are dealing with material on one specific social media site such as YouTube, Facebook, Twitter, etc.
While the Digital Millennium Copyright Act (DMCA) largely defines how these sites respond to claims of copyright infringement, each site has its own policy, and as a practical matter some sites are more responsive than others. To that end, we thought it would be useful to compare the policies of some of the more popular social media sites. Since all of the social media sites are bound by the DMCA, all of the sites require that the notice itself comply with the DMCA. This means that the notice is made with a good faith belief that the use is unauthorized, that the notice provides a description of the infringement and its location on the social media site, and that the notice includes a statement, under penalty of perjury, that the person providing notice is the owner of the work or otherwise has an exclusive right in the work. In terms of responsiveness, sites typically take down properly noticed works within 24 hours to comply with the DMCA’s requirement that the service provider act “expeditiously.”
The differences in the various sites’ policies focus on practical issues such as whether the person providing notice must have an account on the particular social media site to use an online notice system, and whether the notice sufficiently describes the infringing work and its location. Image- and video-driven sites present a unique challenge in communicating the scope of infringement when a particular image or video has gone viral. For example, Pinterest recommends including a copy of the image and a statement requesting that “all pins containing the image be removed.” Pinterest also explains that its ability to take down accused works is limited to identical copies of the image and notes that resized or altered images cannot be detected. Other sites recommend including the URL and indicating that if there is widespread infringement, each URL should be identified in the notice to have the infringing works taken down. On the flip side, the DMCA requires service providers to give the alleged infringer an opportunity to respond and have the material reposted if a response is provided. The following summarizes copyright policies on the surveyed social media sites.
For trademarks, there is no equivalent provision to the DMCA that requires service providers to take down infringing works, but the sites we surveyed all have written trademark policies and often provide an online form for notices. From personal experience, Facebook and YouTube are responsive to these requests, and it is expected that the other sites would also be responsive. Apart from traditional trademark infringement, some sites have developed their own policies on permitted uses of trademarks. For example, Twitter has a trademark policy for promoted products that prohibits:
- Including other brands within your Promoted Tweets in a misleading way: Promoting Tweets with text that misleads users about the advertiser’s brand affiliation may be considered a trademark policy violation.
- Including other brands in your off-Twitter content in a misleading way: Sharing links, images or other embedded media that create user confusion regarding the advertiser’s brand affiliation may be considered a trademark policy violation. This includes content within Promoted Tweets as well as account information such as background, profile photo, profile header, bio and website.
- Featuring brands within your Promoted Trends in a misleading way: Selecting Promoted Trend names that feature trademarked brands in a way that misleads users about the advertiser’s brand affiliation may be considered a trademark policy violation.
Vimeo recommends that users try to resolve trademark disputes themselves by contacting the infringer first before filing a complaint form. Once a complaint form is filed, Vimeo’s policy states that it will investigate the claim and take action when appropriate. YouTube is unique in that it has separate online forms for reporting trademark infringement and advertisements of counterfeit goods on its site. The following table summarizes our findings.