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Overview: IP Issues in Social Media Content

Published on : 04 Jul 2020

IP Issues in Social Media Content

During the Congressional questioning of Mark Zuckerberg, CEO of Facebook, in April 2018, Zuckerberg said: “Every piece of content that you share on Facebook, you own, and you have complete control over who sees it and … how you share it, and you can remove it at any time.” House Energy and Commerce Committee raised an important question, does a user’s rights in data shared via Facebook depends on Facebook’s terms of service and should such terms be regulated? And if so, how? 

Swift advancements in social media pose great challenges for courts, as the existing laws were written without having social media in mind. Congress has also faced difficulty in passing new regulations for the complex and developing area that it does not fully comprehend. The interaction between social media and Intellectual Property (IP) law is an emerging area of concern for the lawmakers, lawyers, business owners and consumers.  

Zuckerberg appeared before the Congress after a University of Cambridge professor was alleged to have obtained data on Zuckerberg along with potentially 87 million Facebook users, through a personality quiz and then shared the data with Cambridge Analytica, whose services were retained by customers, including the 2016 presidential election campaign for Donald Trump. As a result, Facebook tightened its policies regarding the information accessible by third parties and developers, prohibiting the sharing and selling data to others. But what about the information which is shared by the users through the Facebook site? Can Facebook be permitted to utilize such information? Are consumers knowingly permitting Facebook to use their information in connection with advertising? Zuckerberg stated that Facebook is exhaustive in its legal documents, but does not expect most of the people to read a fully legal document. 

Should the content of written terms of service that govern the relationship between social media sites and consumers be regulated like the loan documents that govern the relationship between lenders and consumers? If the users of social media sites carefully read the terms of service, they will be aware of the information being shared among a network of friends and protected by the right of privacy can or cannot be used in connection with subsequent retargeted advertising. 

In the lawsuit Fraley v. Facebook (no. 11-CV-01726), after a user clicked the “Like” button on a company’s Facebook page, Facebook generated advertisements that would typically consist of that member’s name and profile picture asserting that the person “Likes” the advertiser, along with the company logo. The plaintiffs contended that this was a violation of their right of publicity, and Facebook argued that the users consented to share their name and profile picture in the manner utilized through the terms of service.

The stakes are higher for trade secrets. The lists of customers, suppliers, and other contacts, along with their associated information are of huge value to a business but can be highly detrimental when a competitor obtains the information. 

Social networking is a daily part of the new era. With Facebook having about 500 million active users and Twitter having over 175 million users, the online activities are growing, and so are the concerns and challenges related to IP protection on the Internet. Recalling what happened with Daniel Morel, a photographer who was in Haiti during the devastating January 2010 earthquake, Morel posted dramatic first-hand-account photos. The photos went viral soon after Morel posted it. Unfortunate for Morel, someone else posted Morel's taken pictures on their own Twitpic page and claimed ownership. Soon after, French news and photo agency added the images to their photo database, which were transmitted to Getty Images and then published in several newspapers and online sites across the globe. Credit for the photos went to the French news and photo agency, Getty Images and the man who first copied Morel's photographs. Morel took the French news and photo agency and Getty Images to court in New York on the grounds of "distributing and selling his images without prior permission" thus violating copyright law. The agency responded by stating that Twitpic's Terms and Conditions permit others to use the posted images.

The court ruled in Morel's favor, stating the defendants did not meet their burden to establish of being licensed to use Morel's photographs.

The Terms and Conditions of Twitpic and Twitter do not permit the third parties to distribute or use the content without the owner's express permission. Most photo-sharing and social media sites have similar terms in this regard, and, to avoid third-party liability under the Digital Millenium Copyright Act of the United States (DMCA), are required to designate agents for infringement complaints by site users. 

It is virtually impossible to establish binding global legislation on the regulation of social networks. As the majority of servers for these networks are located in the US, American law applies and, unfortunately, it is relatively deficient with regard to the security of Internet users’ private information. 

From “Winter is Coming” to plays on the Harlem Shake to anything involving cats, memes and GIFs (Graphics Interchange Format) are an increasingly popular way in which cultural ideas are shared. Another viral trend? It would definitely have to be the meme involving the big-eyed and bigger-eared Baby Yoda from the Disney Plus series “The Mandalorian” debuted in 2019. The images and animated GIFs of the adorable tiny green creature went viral on the social media feeds soon after the new character appeared in the show. Strangely, the GIFs started disappearing from Vulture and other websites. On 23rd November of the same year, it was reported by the website ComicBook that Disney had deleted Baby Yoda GIFs from Giphy for copyright reasons. But why? Giphy declined to elaborate this fully and stated that it (not Disney) removed Baby Yoda content due to “confusion” which had been resolved. It is still not known whether Giphy took down the Baby Yoda GIFs at Disney’s behest or without any prompting. If Disney didn’t prompt it, then did Giphy act preemptively out of fear that Disney might object to its IP running viral through the Internet? Nobody wants to be sued by Disney; after all the Mouse has enough money and lawyers to eradicate infringers with a sweep of its tail. So, are GIFs subject to Copyright? Yes, GIFs like any original creative work are subject to Copyright. But in practice, their lawful use is a slightly more complicated issue. The GIF content that is widely available tends to range from snippets of existing copyright material (for example a short sequence from a film) or an original animation. The GIF is either an original creation subject to Copyright, or it is derived from pre-existing work that is copyrighted. This presents a unique problem regarding the legal use of GIFs, as it may be argued that they contain unlicensed copyright-protected material. As such, in principle, freely sharing GIFs could legitimately draw the ire of copyright holders. 

There is barely any case law surrounding the use of GIFs which means two things: 

  1. Copyright owners of the material in GIFs are not currently attempting to enforce their copyright. 
  2. No test case exists limiting the extent to which the owner can claim copyright over the GIF

Sites such as GIPHY prohibits the usage of the GIFs on their site for commercial purposes. It would take exceptional and detrimental circumstances for a copyright owner to take umbrage and issue a legal claim based on copyright. The remedies available are reasonable royalty or damages. In both cases, the cost of bringing a legal action would massively outweigh the recompense. As such, a copyright claim against the use of a GIF derived from or wholly comprised of the copyrighted material would not be a commercially viable one. 

Epic Games faced several lawsuits over its use and sale of in-game animations based on dance moves argued to be popularized by celebrities. But who really owns a meme? There's no precedent for copyright or IP suits concerning memes. Memes, specifically the ones imitating movements made popular by celebrities or viral videos, do not appear to qualify for copyright protection. Does a single, repetitive dance move constitute IP? No. As per 17 U.S. Code § 102, the body of work which is protected needs to be an original creation which has been memorialized in a tangible form. Hence, one dance step is not considered a creative body of work because it is not enough material to cover. 

The creators of the original works are rightly protective of their IP. "Grumpy Cat Inc. Corp. Ohio" registered Grumpy Cat with the US Patent and Trademark Office in 2012. In 2013, the owners of the cats used in the memes of "Nyan Cat" and "Keyboard Cat" won a lawsuit against Warner Bros. and 5th Cell Media for distributing and producing a video game respectively by using images of their cats. Getty Images, holding a reputation for strictly enforcing their IP, has enforced the use of one of its images in a meme. The Socially Awkward Penguin was a short-lived meme that was shared, and people would often change the text to include awkward sayings. The original image of the penguin came from a National Geographic photographer, and Getty Images enforced their rights and demanded money from people who used the image in memes.

The Copyright Modernization Act (the "Act"), passed in 2012, is to reform Canada’s copyright legislation. The Act permits the incorporation of the copyrighted works into user-generated content provided it is not for commercial gain and has no substantial adverse effect on the original material. 

In the United Kingdom, the UK’s Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 covers the rights to parody. Section 30A of the Copyright, Designs and Patents Act 1988 (Caricature, parody or pastiche) states that the fair dealing with a work for the purposes of caricature parody, or pastiche does not infringe copyright in the work. The term ‘fair dealing’ provides an exception to copyright but does not provide such an exception for commercial use. 

What can be acceptable for an individual sharing a funny meme with friends is not going to be seen as acceptable for companies seeking to make a profit. When the use of an image is directly or indirectly related to the business or a commercial endeavor, it is vital to first make sure that they have the appropriate licenses in place for commercial use. If the use is commercial, it is less likely to be considered as ‘fair’ and also could be seen as damaging to the original creator’s reputation. 

As per 17 U.S. Code § 107, for determining whether the use made of a work in any particular case is a fair use, the factors to be considered include the purpose and character of the use, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the nature of the copyrighted work and the effect of the use on the potential market for or value of the copyrighted work. These factors are neither exclusive nor constitute a bright-line rule, but rather, are applied on a case-by-case basis (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994)). When the meme is a parody or includes critical comments in a non-commercialized way, fair use will likely save the day. But, if it is used in a commercial way in advertising or trying to sell items by using someone else’s images for the meme, then that will likely invite trouble. 

As per the DCMA, the social media sites hosting GIFs and having a system to report and remove the content accused of copyright infringement will not be held responsible. This means that the DCMA will hold the person liable for sharing copyrighted GIFs, rather than the platform on which it was shared. Even if the attribution or a link back to the creator’s website is included, the person may still be held liable for infringement of copyright. The legal reality of Social Media and IP is really to establish “Who Owns What?”. Well, the viral content always has a creator who will not be happy if everyone else is profiting off of his work. 


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