Social media is an environment rich with opportunity for small businesses to connect with users, share content and convert customers. However, as the internet and social media have advanced, hard rules on content ownership have taken a back seat to progress.
In 2018, small business owners must have a clear idea on copyright laws and image usage to protect themselves from online embarrassment or potentially expensive litigation. Once a user uploads a photo, for example, it's automatically copyrighted, and copying and posting that image could expose your business to major legal risks.
"Copyright exists once you have an original work of authorship fixed in any tangible medium," said Ruth Carter, an internet attorney who is an authority on online copyright law involving blog posts, image usage and trademarks. That includes Twitter and Facebook.
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In fact, a New York federal judge recently ruled that news organizations that embedded tweets that contained an individual's picture of Tom Brady had violated the Copyright Act. The original photographer had originally posted the pic to Snapchat, where it went viral and was then uploaded to Twitter.
Carter wrote a book on copyright law in blogging called "The Legal Side of Blogging: How Not to Get Sued, Fired, Arrested, or Killed" and said that businesses need to understand that copyright infringement is a form of theft.
"There is bad information out there that tells business owners, lawyers, people that they can use anything they find on the internet as long as they give an attribution and a link back to the original," she said. "That's wrong." [Read related article: Best Social Media Marketing Solutions for Small Businesses]
What constitutes infringement
Ryan Vacca is a professor at the University of New Hampshire School of Law and a member of the school’s Franklin Pierce Center for Intellectual Property. He said that the goal of copyright law is to protect original creative expression and that images easily fall under this protection.
"For most pieces of creative work, it easily satisfies the minimally creative standard in – assuming they didn't rip it off from somebody else – the original creator is going to have some copyright protection in that image," he said.
If you download an image and post it, whether it be on your site, in a blog post, or on social media, you're likely committing copyright infringement. Copying any images or user-generated content without the creator's permission can constitute infringement, even if you link back to their website or original post.
"What you may be doing is committing copyright infringement and, because you gave attribution and a link, you admitted it and you told them about it," Clark said. She said that she has caught people copying her work in this fashion multiple times.
In addition to directly downloading and posting someone's work, copyright infringement can occur when you take an image from another company, like image-hosting companies like Getty. Some small business owners may assume that such a large company won't concern themselves with a minor offense, but this can be a reckless assumption. Getty has been known to send bills to sites that feature Getty's images but don't have a Getty subscription, for example.
Copyright infringement and liability
The only person that can hold a business or individual accountable for copyright infringement is the original creator of the work. If, for example, you download or copy an image and the user doesn't notice, doesn't care or decides not to act, you don't have to worry. Relying on this is not a good practice, because either way you're exposed to serious risk.
The maximum penalties for copyright infringement, if the original creator registers their work in a timely fashion with the copyright office, is $150,000 per work according to Vacca. This cost is in addition to legal and attorney fees. The litigation process is expensive, and the original creator could elect for quicker, less expensive alternatives. Clark said these options include sending a cease and desist letter, sending a bill for their work, or using the Digital Millennium Copyright Act to send a takedown notice.
Best practices and how to protect your business
Avoiding liability means being smart about how and what you post online. The best way to protect your business is to always ask permission to use the work from the original creator. This can be as simple as messaging a user and asking for permission, but be careful – Clark said the best way to ensure your business is 100 percent protected is to have a formal agreement signed by both parties.
Besides asking for permission, if you want to use user-generated social media content, you can also embed posts on your website or blog. This practice goes beyond linking and attributing by providing the actual original post. Like asking users for permission to use their work, also be careful with embedding images or social media posts.
"Could copying a tweet be infringement? And so far, the court has said, at least in this one embedding case, it could be. But that's not a crystal-clear, across-the-board rule that we should apply to every situation," she said.
Besides asking for permission, the best thing you can do as a business owner is use different websites like CreativeCommons.org or Flickr to find free-to-use images where a license for commercial or editorial use is clearly established. By using these images, you ensure that your business is posting content legally. Or, of course, you can take your own pictures and post them wherever you want.
The best way to protect your business is getting user permission before posting an image or finding a free-to-use image online. There are some other strategies to protect your business that involve editing images or attributing a fair-use defense despite copying and posting an image.
Both these aspects are hard to define on an industry-wide basis and will only come into play in specific instances. Copyright infringement is hard to boil down and apply to all cases – details of each case will dictate liability and how a business is at risk. You can learn more about infringement on copyright.gov. The bottom line is, despite how easy it may be, copyright infringement is a form of theft.
"Once it's posted on social media and the like, it doesn't lose protection – it still has copyright protection," Vacca said. "It may be very easy to copy, but it doesn't mean that it's OK to do so."
Editor's Note: This is not legal advice. If you need legal advice, we recommend you contact a lawyer directly.