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general / Intellectual Property

Combating IP infringement on social media: a primer

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The rapid evolution of social media and the near instantaneous dissemination of information is among the most disruptive forces in society today. This article will explore the negative impact of social media on artists -- specifically writers, comedians and photographers whose creative materials are uniquely vulnerable to the impacts of social media -- and the protections available to creative professionals under law.

Artists make their living through entertaining us with their unique perspectives about society, current events, and the complications of the human condition. They write books and screenplays, and perform at comedy clubs. Part of their job now includes posting on social media to promote their work to the masses in hopes of building an audience and increasing demand for their services. When an original photo, joke or narrative is posted online it is reasonable to assume that the public is generally unaware that this material is protected by intellectual property rights and limitations subject to U.S. copyright.

As a result of freely accessible online content, a number of high-profile social media accounts, suffering from a poverty of imagination, seek out entertaining social media posts and aggregate that material, altering it only slightly, if at all, and repost the material to their own account as a screenshot, without consent. This business model also includes lining up and linking paid advertisements to the unlicensed and infringing posts.

This unlawful activity has been in the headlines recently after various writers and comedians staged online campaigns to unfollow certain accounts that have become associated with this business model. For example, Jerry Media, owner of the popular Twitter and Instagram accounts that use the handle @fuckjerry, recently has come under fire in a number of lawsuits for reposting memes alongside ads or posting other copyrightable content of others.

Fortunately, there are remedies available for injured parties that take less effort than staging a movement.

The cheapest and simplest avenue for relief is reporting violations using the domain's complaint system offered by the website or app hosting the infringing content. This can be found in the terms of service pages of the platform hosting the infringer's account. However, even if successful in taking down an infringing post, an injured party will not be entitled to recover money or any form of satisfaction other than having a post taken down. It is also likely the infringing account will live another day to continue profiting off unlicensed material.

The U.S. Copyright Act and the Lanham Act, along with various state laws, offer more effective relief -- particularly the ability to claim damages and potentially recover attorney fees.

Copyright Protection

The most robust relief for this kind of infringing conduct falls under United States copyright law. 17 U.S.C. Section 101 et al. The copyright statute was brilliantly phrased to offer protection for original works of authorship including those displayed with technology that did not exist at the time the law was written. Section 102(a) states that copyright protection applies to "original works of authorship fixed in any tangible medium of expression now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

Section 102 lists eight categories of "works of authorship" that are protected. The relevant categories that apply here include (1) literary works and (5) pictorial or graphical works.

Those unfamiliar with copyright law are often surprised to learn that an original work of authorship receives copyright protection the moment it is created, and not merely once it is registered with the U.S. Copyright Office. (Authors do not own the works if they are "works made for hire." See "Works Made for Hire." Section 201(b).) Pursuant to Section 106, the author has the exclusive rights to reproduce, license, and publicly display any protected work. Therefore, when an infringing third party copies, posts, and republishes them under their own account, they are violating the exclusive reproduction and public display rights afforded under the Copyright Act.

The damages available for such infringement varies depending on the registration status of the work, along with the timing and willfulness of the infringement. When an unregistered work is infringed upon, its author may only recover "actual damages," which include lost profits that proximately result from infringement. However, when a registered copyright is infringed, the copyright holder is entitled to statutory damages of "a sum not less than $750 or more than $30,000." Section 504(c)(1). For willful infringement of a registered copyright, the court has discretion to increase the statutory damages award to a maximum of $150,000 per work infringement. Section 504(c)(2). Perhaps more importantly for attorneys and their clients, infringement of a registered copyright entitles the prevailing party to recoup their reasonable attorney's fees incurred in enforcing their copyright.

In most "stolen social media post" scenarios, the author's original post probably was not registered with the Copyright Office. While copyright protection applies without registration, the Supreme Court recently held that a federal copyright infringement action cannot be filed until the infringed work is registered, a relatively simple task. Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019). However, the author may only be entitled to actual and not statutory damages if the infringement ceased prior to registration.

Copyright Holder's Rights Are Subject to Social Media Terms of Service

A social media post or other publication is subject to the platform's terms of service. Courts have held that website users are presumed to have read and agreed to the service terms, which makes them generally enforceable. Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 835 (S.D.N.Y. 2012) (Holding that plaintiff assented to the terms of use on facebook.com). It is important to be aware of the ever-changing terms of service for major platforms to determine whether a user unknowingly assigned away their exclusive protections under copyright.

For example, as of April 1, 2019, the Twitter terms of service state that the user retains the rights to any content submitted: "What's yours is yours -- you own your content." However, the terms also state that the user grants 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." These terms do not take away the user's ability to file a claim against an infringing social media account. But under the terms, Twitter arguably has the right to license any posted content to whomever they want without the author's consent, and could even license that content to the infringing third-party account. While I am unaware of any reports of Twitter sublicensing posts, the terms of service give it the right to do so.

In addition to copyright law, protection may also be found under the false advertising and unfair competition portions of the Lanham Act and California Civil Code. 15 U.S.C. Section 1125; Cal. Bus. & Prof. Code Section 17200. It can be argued that using an artist's material, including their avatar/username, falsely advertises their affiliation, endorsement or approval of the infringing account. Further, it may also be argued that the infringed author is wrongfully portrayed as endorsing the product that is advertised in connection with the stolen post. If the victimized artist is famous or well-known, California's right of publicity statute may apply as well. Cal. Civ. Code Section 3344. These carry their own remedies and damages calculations in addition to the available damages under copyright.

Accordingly, anyone who has their original creative material stolen and misappropriated by infringing social media accounts is not without recourse. Various methods are available under the law and through social media companies' terms of service.

#437

Ben Armistead


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