With new social media platforms and photo sharing apps becoming more and more popular the risk of copyright infringement through the sharing of photography is more present than ever.

The main purpose of social media is that it gives the user the ability to share content instantly, be that through tweets, posting a photo to Instagram or sharing an album of photos on Facebook. In addition to this, many social media platforms give the ability to re-post, save or share other people's content.  When so many options are available, allowing you to share someone's photo at the click of a button, it is easy to forget about the possible legal implications of what you do on social media.

In particular many companies are now using social media platforms to promote their brands. Sharing a celebrity's photo of them using your product or retweeting a photo of a customer in your restaurant may be a fantastic way to build your company profile, but it may also amount to copyright infringement. To help you avoid any sticky situations in relation to copyright infringement, we have created a list of some points to consider when sharing or posting photos online:

Is it your photo – specifically did you take the photo yourself?

If the answer to this question is yes, then you do not have to consider any risk of copyright infringement when posting your photo. Copyright is a legal protection that automatically arises as soon as original content is created (for example when a photo is taken) and the rights under that copyright protection to use or sell the photograph belongs to the creator – in this case you. 

If you didn’t take the photo, has the copyright in the photo been assigned to you or do you have a licence from the copyright owner to use it?

The fact that a photograph has been posted on the internet does not mean that it is freely available for you to use. The photographer who originally took that photo is likely to still own the copyright over the photo and as a result use of that photo could amount to copyright infringement. An exception to this is if you have been assigned the copyright from the photographer or granted a licence to use it.

If you don’t own the photo or have a licence to use it, can you obtain a licence to use or share the photo?

If in doubt about whether you can use a particular photo the safest thing to do is to contact the photographer directly and ask whether they are willing to grant you a licence to use the photo. If the photographer will grant you a licence, make sure you get the correct licence for the type of use you intend for the photo and then make sure you stick within those agreed terms when using the photograph. In addition to individual licences from photographers, there a number of websites online that allow you to purchase different types of licences to legally use the photos provided on that website.

Is the photo on social media?

Once a photo is shared on a social media platform the terms and conditions of that platform are likely to have an effect on the copyright protection of the photo. The extent of the effect on the copyright of the photo is dependent on the particular platform, for example:

  • Twitter – Twitter's Terms of Service state that the original copyright owner retains those rights, however by posting it on Twitter you grant Twitter a "worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy reproduce, process, adapt modify, publish, transmit, display and distribute such Content in any and all media or distribution methods.."
  • Facebook – Facebook's Terms of Service state "You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition… For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it..."
  • Instagram – Instagram's Terms of Service similarly state that Instagram does not claim ownership of any content posted on Instagram, however it does state that "you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service"

In summary, the examples above show that just because a photo is posted on social media that certainly does not mean that no copyright exists in the photo. Usually the original copyright owner retains all rights in the photo and as a result the same rules apply as set out above.

In addition, if you are thinking of posting your photos on to social media, make sure you consider the effect that may have on your rights as set out above. For further details take a look at the terms and conditions of your chosen social media platform.

Social media can be a great way to promote your business and a fun way to share content with others. But remember, intellectual property rights exist in the online world just as they do in the real world. So always take a moment to consider the tips set out above before sharing other's photos!