Social media sites and terms of service: What may I do with the content?

Facebook’s terms of service give Facebook the unlimited right to use any photos, videos, and other intellectual property content posted on the site.  Facebook acknowledges that ownership of the content is retained by the user, but the ownership rights are subject to the license granted by the user to Facebook.  Twitter similarly acknowledges that ownership of content remains with the user, but also claims an unlimited license to use the content.

It’s quite tempting to use content posted by friends and others on social media sites.  Whether the use is personal or commercial, or for public or private use, some content is simply very good, and users may want to use the content for a variety of purposes.  The rights granted to Facebook, Twitter, and other social media sites are very broad, and sharing takes place freely, but the sharing rights are not unlimited.

In a case decided earlier this year in the United States District Court of the Southern District of New York, the court decided what rights third parties had to photos posted on Twitter.  Daniel Morel, a photojournalist, was in Haiti at the time of the devastating earthquake in January 2010.  He took several photographs of the scene after the earthquake, and posted them on Twitter through his TwitPic account.  Shortly after Morel posted his photos on Twitter, they were reposted to the account of Lisandro Suero.  Through a series of events, some of the photos were downloaded by Agence France Presse (“AFP”), a French news agency that maintains and online photo database, and some of the photos were licensed by AFP to Getty Images through a reciprocal license agreement to display images.

AFP brought the action against Morel seeking a declaration that its acts did not constitute copyright infringement.  Morel filed a counterclaim against AFP, Getty Images, and the Washington Post seeking a determination that they each willfully infringed his copyright in the photos.

One of the arguments made by AFP was that it was not liable for copyright infringement, because Morel granted it a license to use the photos by posting the photos on Twitter.   AFP acknowledged that the act of posting photos online did not eliminate  Morel’s copyright in the photos, but argued that it had a license to use the photos through the Twitter terms of service.  Alternatively, AFP argued it was a third party beneficiary of the Twitter terms of service.  The court was not persuaded by either of these arguments.

The court acknowledged that Twitter encouraged and permitted broad reuse of content, but also found that Twitter did not grant an express license to AFP to use the photos for purposes other than reposting.  The Twitter terms of service provide that the user, by posting content, grants to Twitter a worldwide, non-exclusive, royalty-free license to use content in any and all media or distribution methods.  The terms of service further provide that Twitter may make content available to other companies, organizations, or individuals who partner with Twitter.  But the court found that the terms of service did not give AFP the rights of use it claimed in the litigation.

Photos and other content on social media sites generally may be reposted.  The current Twitter terms of service provide that “this license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”  Facebook’s terms of service are similar. However, the rights granted are not unlimited, and specifically do not include the right to download and license photos posted on Twitter or Facebook to third parties.

There are two potential ways to have permission to repost or otherwise use a photo or other content posted on a social media site.  One is to contact the owner of the copyright and obtain permission directly from the owner.  The second way is to fall within the terms of the terms of service of the social media site.  Before relying on the site’s terms of service, however, it should be clear that the use falls within the scope of the license granted in the terms of service, and that the person using the content is an intended licensee or beneficiary under the terms of service.

As Agence France Presse learned the hard way, using without permission another’s content posted on a social media site is still copyright infringement.

Legal traps in social media: What every business should know

As of March 2012, there were 901 million monthly active users on Facebook. Although the stock of Facebook has experienced a roller-coaster ride, which has mostly been on the first steep downhill part of the track, the slide probably says little about the future of Facebook and social media. Technology and innovation behind social media are experiencing a rapid rate of change, and the law usually lags, but an understanding of legal issues is important to avoid liability. Here’s what business owners need to know to avoid legal traps in social media.

User vs. provider

On a simplistic level, there are two ways to approach social media from a legal perspective. One is from the perspective of the user and the other is from the perspective of the provider of social media.  Bloggers and users of social media need to be concerned about liability for what they are posting, and providers of social media portals—including businesses—need to be concerned about potential liability for simply making the social media vehicle available.

Original content or else

When posting content on social media, or in any other environment, there are some basic rules to follow. All content should be original to the person (or company) posting, or there should be a license to post the content. Original works, including text, graphics and photos, are protectable under copyright law. Except in limited circumstances, the owner must grant permission to use or post the content; failure to obtain permission constitutes infringement. Granting attribution, or identifying the owner of the content, is not sufficient for compliance with copyright law. Although it is easy to rationalize that no damages could possibly flow from a blog or other post, statutory damages of up to $150,000 in the case of willful infringement are available.

Angry post: Sleep on it

Social media has a tendency to encourage informality. Informality can lead to negative consequences. Posting without thinking or posting when angry or frustrated can be problematic. Although anger is not a concern legally, the words that fly in angry posts can be. Posting untrue statements that damage the reputation of another may be actionable and lead to liability. The solution is less legal and more practical. Never post when angry, and when frustrated, create the post and let it sit overnight. Hopefully a little time will soften some of the words and reduce the risk of potential liability. Another result of speaking before thinking is the disclosure of trade secrets or other confidential information. Again, thoughtful time before posting can prevent big problems later.

Screening employees online

Employers as users of social media have a great resource for conducting background checks. Unfortunately potential employees sometimes are not very wise in what they post, and frivolous posts can lead to employers making employment decisions based in part on those posts. However, there are limits on what information employers may use. Just as an employer is limited in what questions may be asked in an interview, the scope of information found through social media that an employer may use is also limited. Any information that is prohibited in an interview, but is available online, may not be used in hiring decisions. To be safe, employers should have at least two people involved in the process: one person to retrieve and screen information available through social media and a second person to use the information in making the employment decision.

Social media use policy a must

Employers also face issues of employee use of social media, both on employer time and employee time. Although an employee may be posting on Facebook or tweeting on his/her own time, the employee may be clearly associated with the employer. Employee posts can reflect on the employer. In addition, employee time spent posting on the job may be desired by employers to increase exposure of the company, or the employer may determine that social media on the job is prohibited. For these and several other reasons, employers should have social media use policies.

Businesses and other providers of social media can find themselves facing many of the same issues as users of social media. There are safe harbors to avoid liability for copyright infringement, defamation and other claims, but steps need to be taken to take advantage of such protections.

Social media is alive and well and proper use can provide significant business and personal benefits.