What you need to know about social media copyright

Navigating social media copyright can be like sailing in uncharted waters. With every new wave of social trends come unanticipated legal consequences. Risks like trending sounds, user-generated content (UGC) and creator partnerships can rock even the most responsible, well-meaning brands.

While dodging infractions, you must balance protecting your own intellectual property. As Kelley Gordon, Partner at Marshall, Gerstein & Borun, says, “Copyright risks for brands are twofold—brands are not only at risk of being accused of copyright infringement for posting third party content…they also risk third parties reposting [their] original content.”

In this guide, we outline the specific practices your company should follow when posting to help avoid social media copyright infringement and protect your brand. Keep reading for more tips from Kelley Gordon, an expert in copyright and intellectual property law, and examples that will help you create a proactive social media policy.

Please note: The information provided in this article does not, and is not intended to, constitute formal legal advice. Please review our full disclaimer before reading any further.

How copyright works on social media

Before we dive into the nitty gritty, here are a few definitions you need to know to make sense of copyright regulations and legal jargon:

• Commercial intent: When a brand uses products, tools, content or other intellectual property with the intent to make a profit. For example, reposting and promoting UGC as part of an ad campaign is usually considered commercial intent.
• Fair use: US legal doctrine that allows for circumstances when copyrighted material can be copied and/or used without permission. Common examples include reporting news, teaching and researching.
• Fair dealing: Laws that allow for circumstances when copyrighted material can be copied and/or used without permission in countries outside of the US (including the UK, Australia, India, Singapore and more). These laws tend to be stricter and offer fewer allowances than US regulations, so stay alert to the specific restrictions of the countries you operate in.
• Ownership of content posted: Refers to the original owner and/or creator of content. Even though social media networks have rights to content on their platforms per their licensing agreements, social media users are the legal owners of the content they post.

Of course, this isn’t an exhaustive list of legal terms, and you should consult with your legal team to find out if there are any other relevant topics you should be familiar with.

6 tips to help avoid copyright infringement on social media

Violating copyright policies and laws can have serious consequences. Brands might have their accounts deleted, face a lawsuit or be required to pay steep statutory damages (fees reach up to $150,000). With such high stakes, it’s important to minimize risks and stay up to date with the latest best practices.

Follow these six tips to help you avoid copyright infringement on social media and preserve the integrity of your brand.

1. Create a social media policy with your legal team

The best thing you can do to avoid violating copyright law is have regular meetings with your legal counsel, whether they’re an in-house team or external resource. Work with them to draft your company’s social media policy (pro tip: use our social media policy template to get started) and build ongoing rapport.

Collaborate on a clear social media governance process, including your security provisions, regulatory compliance requirements and copyright infringement prevention tactics (i.e., specific guidelines around reposting content, using trending sounds and partnering with creators).

Your policy is a good place to formalize your social media approval workflows, too. As a preventative measure, your legal team might want to be privy to some or all of your social content before you hit publish.

By using a tool like Sprout Social’s Message Approval Workflows, you can give your legal team clear visibility into your content calendar and gain their approval on individual messages without leaving the Sprout platform. Even if they aren’t a platform user, they can use the tool to approve posts and add comments—streamlining your review process and enabling you to publish faster.

2. Post original content where possible

Creating content that is 100% original is the only way to completely avoid copyright risks. While jumping on trends, using viral sounds and reposting content are powerful plays for awareness, their dangers might outweigh their benefits. Discuss the right ratio of original and third party content with your legal team, but err on the side of original whenever possible.

Plus, posting original content has its upsides. It empowers you to create your own cultural moment and be a visionary rather than just a trend follower. Because the trend cycle moves at lightning speed, it’s best to be active in the nascent moments of a trend’s lifespan. Doing so can also protect your brand from aligning itself with a trend or moment that doesn’t match your brand values.

Keep in mind creating original content might put you at greater risk of having your intellectual property used without consent. Have a plan in place with your legal team to protect your creative assets.

Kelley advises, “If a marketer [creates original content], it may be well worth obtaining a copyright registration as soon as possible, particularly if the brand is concerned about copycats.” She explains that obtaining a copyright registration is the only way to file a lawsuit for copyright infringement if another brand uses your content for commercial intent. Though this is a worst-case scenario, it’s best to be prepared.

3. Make sure you’re using the right type of account

Make sure your brand is using a business account for the best chances of staying compliant with copyright rules and regulations. While brands can technically make creator accounts—those designed for personal social media use that offer more creative freedom—that doesn’t mean brands can legally use the same creative assets because of their commercial intent.

For example, TikTok Business Accounts have a limited sound library compared to creator accounts (which offer full access to all audio clips available in the app). While using a creator account might seem tempting, it’s ultimately not worth the risk of copyright infringement.

4. Obtain proper licensing and permission

If using third-party content would greatly benefit your brand, be sure to obtain proper licensing and ask for permission. As Kelley puts it, “Permission, permission and permission are the three most important things to know about social media copyright.”

Kelley recommends working with your legal team to determine the specific actions you should take to request use of third-party content. “If your brand is considering use of pre-existing imagery or content, pause to consider whether the content has terms and conditions of use already attached. Determine whether it’s necessary to reach out to the creator and request permission to use the content, to negotiate a license or obtain an assignment of copyright.”

The licensing or permissions you need vary depending on the type of content. For example, when you ask to repost UGC on the same platform, getting agreement via DM is a commonly used method. To speed up your outreach, use a tool like Sprout’s Saved Replies to create a standard, on-brand request for permission.

5. Make sure video participants sign a release

According to copyright law, if you feature people in your brand’s content, you must ensure they sign a release form to use their name, likeness or image for commercial purposes. While waivers are sometimes not required for educational content, the technical definitions of what’s considered “educational” are murky and it’s safer to assume branded content would be deemed commercial under scrutiny.

That’s why at Sprout we require everyone featured in our social content to complete a release form, which authorizes us to:

• Use someone’s likeness, thoughts, opinions, ideas, statements and commentary in our content
• Be the sole and exclusive video or image owner
• Have complete control over the distribution rights and financial profits

Tap your legal team for help drafting a content release form of your own that best suits the needs of your brand.

6. Use trending sounds with caution

As we’ve alluded to throughout the article, you should not use trending sounds without permission. Though illegally using trending audio seems like a minor offense, it can result in serious consequences—including lawsuits. As Kelley describes, “Even when infringement is proven to be innocent, there is still risk of monetary damages. If a dispute reaches litigation, the US Copyright Act provides for a variety of monetary damages such as statutory damages or recoupment of an infringer’s profits attributable to the infringement.”

As a loophole, many social marketers have tried creating DIY, lo-fi versions of popular audio. When in doubt, always consult legal experts to determine how comfortable your company is with risk related to trending sounds. And as a callback to tip #2, remember: it’s better to create your own cultural moments anyway.

Ensure you follow social media copyright guidelines

Understanding social media copyright law is complex, especially because there is such little precedent. Use the help of your legal team and an intuitive social media management platform like Sprout Social to build a future-proof, copyright-friendly social media strategy.

Risk prevention doesn’t stop with copyright infringement prevention. Up next: Read our guide to navigating social media compliance to stay on top of all the risks your brand could face on social today.

Disclaimer

The information provided in this article does not, and is not intended to, constitute formal legal advice; all information, content, points and materials are for general informational purposes. Information on this website may not constitute the most up-to-date legal or other information. Incorporation of any guidelines provided in this article does not guarantee that your legal risk is reduced. Readers of this article should contact their legal team or attorney to obtain advice with respect to any particular legal matter and should refrain from acting on the basis of information on this article without first seeking independent legal advice. Use of, and access to, this article or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user or browser and any contributors or contributing law firms. The views expressed by any contributors to this article are their own and do not reflect the views of Sprout Social. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.

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