Businesses use social media to enhance their brand identity and to communicate and identify with their customers. However, businesses often turn a blind eye to the potential copyright infringement ramifications that may arise from unlawful use and distribution of content on social media platforms. To that end, this article examines the copyright risks associated with distributing content on social media platforms and discusses how to mitigate risks associated with social media.

Unauthorized Use of Content

"Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression." Copyright in General; see 17 U.S.C. § 102. Copyright ownership grants the owner the exclusive right to do and authorize the following:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based on the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works, to perform the copyright work publicly; and
5. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

See 17 U.S.C. § 106. Copyright protection attaches to an original work of authorship from the moment of a work's creation. As a result, copyright protection extends to Internet content upon creation. A copyright infringer is "anyone who violates any of the exclusive rights of the copyright owner." See 17 U.S.C. § 501.

Social networking sites allow users to post content, such as photos, videos, and other digital files, for public viewing, inevitably resulting in the distribution of copyrighted material. Indeed, social media business users frequently upload content to enhance their brand image and to communicate with their customers. Oftentimes, businesses post content that is not their original work of authorship but instead originates from a different source. Further, businesses post this content without ever obtaining the original author's consent and without giving the original author the proper attribution. In the absence of a fruitful defense, such careless posting could open a company up to liability for copyright infringement.

Consider the following example. You are a restaurant owner in Dallas, and one evening, Troy Aikman dines in your restaurant. Troy Aikman takes a picture of himself and his guests at the table and posts this picture on his Facebook page. It must be your lucky day, because this picture has your restaurant's sign and beautiful decor in the background. You take this picture from Troy Aikman's Facebook page and post it on your restaurant's Facebook page to advertise your business. Believe it or not, your actions may rise to copyright infringement. The photographer is the author of the photograph and, as such, the copyright ownership vests in him. Therefore, when you took his original work of authorship and posted it on your social media website without his permission and without giving him the proper attribution, you may have infringed his copyright rights.

Consider another example where a customer purchases your product and writes and posts an article praising the product on his or her blog. The author of that article is the owner of the copyright that attaches to the publication of that article. Therefore, you may not repost this article on your company's Facebook page to advertise your product without the author's permission. Such posting without consent could subject you to liability for copyright infringement.

Damages Associated with Copyright Infringement

If you are found to infringe a copyright, you may be liable for either (1) actual damages and any additional profits of the infringer or (2) statutory damages. See 17 U.S.C. § 504(a). If the copyright owner elects to recover statutory damages instead of actual damages, the owner may recover a sum of not less than $750 or more than $30,000. See 17 U.S.C. § 504(c). Further, if a court finds that the copyright infringement was willful, the court may increase damages up to $150,000. See id.

Mitigating Risk Associated with Social Media

As you can see, copyright infringement may subject a business to large damages, and thus it is a very serious concern for those businesses that actively promote and communicate with customers through social media. Consequently, before posting content on a social media portal, you should consider whether the content is the original work of someone else and whether you have the legal right to post and distribute such content. If you are not sure whether you have the right to post the content, you should consult your in-house counsel or other legal counsel to understand your rights and the risks.

Moreover, to alleviate copyright infringement concerns associated with your company's use of social media, you should advise employees of the consequences associated with social media and adopt a thorough and manageable social media policy. The policy should advise employees of their responsibilities and privileges associated with social media use. It is important to educate employees on what constitutes copyrighted content. Further, it is important to stress the potential copyright ramifications of posting unauthorized content without the author's consent.

Conclusion

While social media platforms are a useful tool for businesses to enhance their brand identity and to communicate and identify with their customers, the risks associated with posting content on social media websites should not be ignored. Indeed, before posting content on a social media platform, it is important to consider whether you have any legal right to post content or whether such posting could subject you to copyright infringement liability. If you are unsure about whether you have the legal right to post certain content, consult your in-house counsel or other legal counsel to understand your rights.