Craft Focus - June/July 2020 (Issue 79)

73 ACID To find out more, visit creativity, original works, and the distribution of culture and information, which it does by allowing the originator to sell or licence their works for payment. Infringement on social media The popular social media platform Instagram has over 95 million photos and videos shared every day, with 40 billion shared since its creation. The social media philosophy of encouraging the sharing of content, created by you and others, boosts the platform’s ad-based revenue and disagrees with the implications of copyright law. Sharing a photo created by someone else, without their permission, is technically a copyright infringement and cases of social media users being pursued, legally, for posting images, are on the rise. CASE STUDY Kardashian Vs Exposure Khloe Kardashian posted a photo of herself (taken by Manual Munoz) on her Instagram with the watermark removed, the photo was licenced to the Daily Mail by the photo agency (Exposure). Khloe was sued for copyright infringement for injunctive relief, damages and trial by jury but settled out of court. Gigi Hadid Vs Xclusive Gigi posted a photo of herself to her Instagram, Xclusive brought a civil complaint seeking a trial by jury and damages for copyright infringement. Xclusive argued that Gigi’s use of uncredited photographs was wilful and intentional. Gigi argued that she had added value to the image by her own actions i.e. posing, providing content. Instagram – ‘We don’t own your content’ Think that you own the content that you post on social media? Think again! Although Kevin Systrom co-founder of Instagram states, “Instagram users own their content and Instagram does not claim any ownership rights over your photos,” with their legal terms also stating, “You represent and warrant that you own or have secured all right necessary to display, distribute and deliver all content.” Meanwhile Instagram’s legal terms state, “You grant us and our affiliates a non-exclusive, transferable sub-licensable and royalty-free worldwide licence to use any data, content and other information made available by you or on your behalf.” If you are a creator, it is imperative that you are aware of these terms i.e. if a photographer were to licence an image under an exclusive licence, and then post the image to Instagram, they would be in violation of that licence. Copyright; Exceptions to the rule Parody, Education, News reporting, Quotation, Criticism & review, Text & Data mining, Research & private study, Libraries, Archiving, Museums, Disability, Orphan Works (You can pay an orphan works licencing fee to the IPO). Social Media Strategy – some simple tips The contradiction between the social media sharing culture and copyright law makes it difficult for lawyers to advise their clients, saying “don’t use social media” is not helpful! An effective social media strategy should include the following steps: • Be vigilant in checking for counterfeit goods and take action if you find them – all platforms have some form of notice and takedown procedure. • Make sure you communicate with your customers so that they understand what legitimate purchasing options to use i.e. website. • Be aware that even copyright protected content posted on social media is likely to be shared i.e. photos and videos, decide what you want to share and what you want to keep. • You risk copyright infringement by sharing content without permission. Sharing content using utilities, such as the Share button (which creates a hyperlink) on platforms like Facebook and LinkedIn is less risky. Screen-grabbing and posting – even with acknowledgement – is more risky. • Using copyright protected content can be allowed under copyright exceptions and institution licencing. Sharing third-party copyright protected content – photos and videos – risks copyright infringement claims.