Not the same truck, not the same trainee attorney, not the same copyright owner
Social media is an important part of marketing a new product. If your business can successfully engage with its customers through Facebook, Instagram, Twitter and the rest then you might even achieve the Holy Grail of marketing – where your customers are happy to advertise your product for you, completely free of charge. Customers with huge grins posting pictures of themselves excitedly opening the packaging of their newly-acquired combination pickaxe and egg-slicer – what could be better?
You’ll want to share those selfies on your business’ social media profiles – but are you free to do so? Copyright subsists automatically in photographs, and usually belongs to the photographer. That means that the photographer is entitled to control distribution of the image, and in particular prevent unauthorised copying.
In the context of the sharing culture across today’s internet, that seems problematic. However, the major social networks have of course thought of this already. As an example, Facebook’s terms of service state that “You own all of the content and information you post on Facebook… [but] for content that is covered by intellectual property rights, like photos and videos… you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post…” It goes on to say that the Licence “ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”
So on Facebook at least, if content has been shared with you through the sharing features of the platform, then it appears that you are safe to use those same sharing features to expand the reach of the image. However, the photographer has not given you any particular permission to go beyond that, so downloading the image and re-uploading it in order to go beyond the limitations of the sharing features could well be copyright infringement. Certainly, if the upload was to a different social media website the photographer may well have grounds to object.
Finally, if content has been published by the copyright owner on the internet so that it is freely accessible, then it is generally acceptable to link or frame this content. So said the Court of Justice of the European Union in Svensson and GS Media.
So, to the two recent posts on our Twitter feed? On 25th September we linked an article from news site etcanada.com about Beyonce’s copyright dispute with the estate of Messy Mya. The article includes a photograph of Beyonce in the window of a truck, which we believe was posted by etcanada.com with permission of the copyright holder. The post on 28th September is trainee attorney Marc Maidment striking a remarkably similar pose. The photographer? I took it myself. What’s the copyright situation?
Can Albright IP legally link / embed the photograph of Beyonce?
Yes, we hope so! The photograph was made freely accessible on the internet, and we believe that this was legally done with the consent of the copyright holder since it appears to be posted on a reputable news website. If we’ve got that wrong the copyright holder can notify us, and if we don’t take it down then the post it will become infringement at that point.
Can I re-tweet the photograph of Marc in a truck?
Yes, because Twitter’s terms of service specifically state that we have granted to Twitter a licence which authorises them “to make your Content available to the rest of the world and to let others do the same.”
Can I download the Marc-in-a-truck photograph from Twitter and put it on my Facebook page or have it printed on a mug?
Probably not. Although Twitter have wide-ranging rights under the licence granted to them, including the right to sublicense, other users have no particular permission to copy the photograph. As with the Beyonce photograph though, since the photograph has been made freely available by the copyright holder, you are free to link or embed. To copy, you would need permission and for the purposes of this exercise, you don’t have it.
What will happen if I make my Marc-in-a-truck mug anyway?
In principle you would be infringing copyright in our photograph. We could issue a claim in court seeking among other things, an injunction to prevent further infringement, damages, and our legal costs. Are we going to do that? It’s probably unwise for a copyright holder to admit it, but in this case, no we aren’t. The reality is that, like the majority of photographs posted online, this one has no particular artistic merit or commercial value and we aren’t going to bother. The same is probably true for most of your fans’ selfies with your spanking-new product, and so the risk may not be all that high financially. However, it’s always possible that someone is going to be upset and want to make a point, and there could be reputational damage. It comes down to this: it’s polite to ask.
So what can I do to engage with my fans whilst reducing legal risks?
Stick to using the sharing facilities within social networks. Avoid anything that involves downloading and re-uploading without asking permission. Avoid anything where there is a reason to believe that the person who posted the image did not have permission from the copyright holder to do so. If asked to remove something, smile and comply. Seeking permission could form an opportunity for further engagement with fans, for example as part of a promotion, prize draw, or giveaway.