Did you make a witty observation on Twitter today? Maybe update your Facebook status? Or post your latest culinary creation to Instagram? If so, you might be a copyright owner. Congratulations!
That may sound ridiculous, but it’s true. The Copyright Act of 1976 gives copyright protection to “original works of authorship”; “fixed in any tangible medium of expression”; “from which they can be perceived, reproduced, or otherwise communicated.” Simply stated, if you created something original (it has a “spark of creativity” and is not copied), put it into a smartphone or computer (even before uploading it), and it can be perceived (can you see it?), then you have copyright protection for it. Having a copyright gives you the exclusive right to do all kinds of stuff to your work, like copy, manipulate, and distribute it.
But when you share your copyrighted works, you also share your rights. The terms of service of the most popular social networks take the same approach to the content you create and add to their service: they acknowledge that you own the information and content that you post but, in exchange for using the service, you grant to the company the right to use your stuff in every way that you could use it. It’s what they call a “non-exclusive, royalty-free, transferable, sublicensable, worldwide” license. (Don’t you hate lawyers?! Yeah, me too.) It means that you give the service, and others they may choose, permission to use your stuff anywhere in the world, and they don’t have to pay you for it. Not surprisingly, most of these social networks, explicitly or implicitly, suggest that the license to use your stuff extends to other users of the service as well.
As for third parties, or for use of your stuff outside of the service, that’s a little more complicated. Most social networks’ terms of service indicate that the license to use your stuff extends to their “partners” or “affiliates.” This includes companies that help the site to provide its service to you, and advertisers that may target you for services and products you may find relevant.
If, however, someone wants to make money from say, selling your Instagram selfies, a recent federal court decision has held that not even the broad license granted in most terms of service approves that kind of use. But, before you get in your feelings and try to lawyer up, know that you have to register your copyright before you can even start a lawsuit. Although copyright registration is a relatively simple and inexpensive process, it might make your think twice about how significant your messages and photos really are. And we haven’t even started talking about how you have to prove actual damages, or others’ profits, from their use of your stuff. So, unless it really matters to you, some people may get away with using your stuff without your permission.
Beyond all of that, the Copyright Act creates an exception to your exclusive rights called “fair use,” which gives anyone permission to make certain uses of your stuff, namely: “criticism, comment, news reporting, teaching . . . scholarship, or research.” Those uses do not infringe your copyrights.
So yes, you have rights to the stuff you share through social media, but the burden of enforcing those rights often diminishes their usefulness.
Not all hope is lost. If you’re concerned about acknowledgment for your work, you might consider using a Creative Commons license, or something like Stipple to attach attribution to your photos as they circulate the web.
As for privacy, given the public nature of social media services, it would seem obvious that users do not have a reasonable expectation of privacy in the content they share. The federal government has been concerned, however, about privacy in electronic communications and created the Electronic Communications Privacy Act in 1986. Unfortunately, the act has not been revised since then and has been outpaced by the rapid development of today’s popular social networks and the ways we use them. Organizations like the ACLU are advocating for an updated law that fully considers the current electronic media landscape. Until then, we’re subject to the whims of privacy policies and the decency of our fellow users. Proceed with caution.
George C. Gardner, III is a graduate of the Howard University School of Law and has practiced in government, nonprofit, and private sector settings. His experience includes constitutional civil rights law, commercial litigation, and transactional matters in the small business context. He is licensed in the State of New York where he has recently transitioned into solo and freelance practice. Follow him on Twitter: @ggiii.