Navigating the social media maze of copyright

published in McAfee & Taft tIPsheet | August 14, 2020

As 2020 marches on, companies continue to focus on social media and other online forms of marketing and advertising to connect with their customers. Unfortunately, by advertising and connecting through social media, companies may be unknowingly agreeing that others can use the company’s posted content without permission.

Companies routinely accept license agreements and terms of use for software and other online products, but what companies may not know is license agreements and terms of use are also prevalent with social media platforms. Posting content on social media may give the social media platform and its users a license to the content posted, which could result in third parties lawfully using the content without the consent of the posting company.

For example, when a user posts content to Instagram, the user effectively agrees to Instagram’s terms of use which give Instagram a sub-licensable, worldwide license to use the posted content until that content is deleted or the user deletes their account. However, it’s more or less impossible for a user to fully delete access to the content, or regain control of that content, if the content has already been shared with others through the Instagram platform. These terms were recently the center of a copyright dispute in federal court in Sinclair v. Ziff Davis, LLC and Mashable, Inc., No. 18-CV-00790 (KMW) (S.D.N.Y. April 13, 2020).

In Sinclair, a federal court dismissed an author’s copyright claims reasoning that, because the author uploaded the copied content on Instagram, and through such upload agreed to Instagram’s terms and conditions, the author granted Instagram the right to sub-license the same content to other users. Specifically, Instagram’s Privacy Policy allowed for uploaded “public” content to be used by others, namely Mashable, as embedded, linked content through Instagram’s embedding API (application programming interface). This means others, such as Mashable, can copy and paste Instagram’s embed code for the content into their website such that, when users visit their website, the embed code directs the user’s browser to the servers of Instagram, causing the content to show up as if it was originally posted on the website.

Instagram has since publicly clarified its terms of use to indicate that, while its terms allow for a right to sub-license content it receives from users, Instagram does not grant a sub-license for the embedded APIs, as users must have the necessary rights (license) from the applicable rights holder before embedding links to content. What does this mean for companies? Unfortunately, it means that confusion still remains in the overlay of copyright and social media. Companies should be wary of using third party content in the company’s own marketing and advertising, as a “public” post may not necessarily mean any future use of publicly posted content is lawful. Likewise, companies should think carefully about what they share through social media, as that could create rights for others to use the same content.