Footnotes
1
17 USC §504. Remedies for infringement: Damages and profits
- (a) In General-Except as otherwise
provided by this title, an infringer of copyright is liable for either-
- (1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or
- (2) statutory damages, as provided by subsection (c).
- (b) Actual Damages and Profits.The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
- (c) Statutory Damages.
- (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
2 Tex. [Property] Code Ann. § 26.002 (Vernon 1987).
3 Tex. [Property] Code Ann. § 26.004 (Vernon
1987).
4 Henley v. Dillard Dept. Stores,
46 F. Supp. 2d. 587, 597 (N.D. Tex. 1999).
Special thanks to Rebecca N. Warren for coauthoring this article.
Social Media and Copyright
The internet provides accessibility and ease that benefits our daily lives in many ways. However, it is easy to forget that just because something is accessible doesn't mean it should be used without thought. Taking shortcuts in advertising, like downloading a picture off the internet without paying for it or not using some form of Shutterstock or Getty images, can be detrimental to your business.
It's expensive to hire models to pose for your "$5 for Green Beer!" ad on a St. Patrick's Day lunch promotion. It's expensive to pay for a photographer or a Shutterstock image every time you make a new ad to promote your condos. It might be easier and cheaper to pull that picture of the beach off someone's Facebook page. Maybe it's cheaper to just pull that girl's post of her in her St. Patrick's Day outfit off Instagram and insert it alongside your ad. Unfortunately, the easy and cheap way may result in a cease-and-desist letter from a lawyer in your inbox. Once that happens, the $150 price tag for that photo of the beach might seem like a bargain.
Copyright protection attaches to an original work of authorship from the moment of the work's creation. 1 That protection extends to internet content upon creation; even those 3-second YouTube Shorts and Instagram Reels are protected. Infringing on that copyright may make you liable for actual damages, statutory damages, and any additional profits of the infringer.
If the copyright owner decides to pursue statutory damages instead of actual damages, the owner may recover a sum of no less than $750 or no more than $30,000. In addition, if the court finds that the infringement was willful, it may increase the damages to $150,000. These damages can be recovered per incident, meaning per post! If you posted the ad with the "borrowed" beach photo on your Instagram five times, you could be subject to paying that fine five times.
This illustrates how copyright infringement has the possibility to subject a business to large damages. To mitigate that risk, consider whether all of the content in the post is work that you own. If you are unsure whether you have the right to post, speak to counsel to confirm rights or discuss risks.
Publicity Rights and Misappropriation of Name, Image, and Likeness
Almost every business these days has some form of online presence. It is an easy way to enhance brand identity and expand your reach. It connects consumers directly to the brands they know and love, while giving new companies the space to grow. There are many benefits to companies having an online presence, but there are also things to watch out for. For instance, the prevalence of name, image, and likeness (NIL) protections and licensing has come to the forefront of many businesses, thanks to the popularity of National Collegiate Athletic Association (NCAA) athletes. Even the casual sports fan has heard of the NIL deals that athletes can make to earn money for their NIL rights. But NIL rights apply in many different situations, to a variety of people, not just NCAA athletes.
It's not just online content that can be protected. 2 Many states have specific statutes that cover rights of publicity, privacy, and NIL. In Texas, your voice, name, signature, photograph, and likeness are protected property rights. 3 There is a way to register your property rights with the Texas secretary of state, and while it is not necessary, it is prima facie evidence of a valid claim to your property rights. These property rights are what support your right of publication. That means the use of another's likeness for your benefit could land you in a lawsuit for misappropriation. 4 In a misappropriation case, the owner has to prove their likeness was used for some advantage, but it does not have to prove any monetary gain.
Some social media apps allow users to repost another user's post so that their own followers can see what they saw. It shows up on the reposter's account as authored by the original creator but is now exposed to a new audience. For a budding company, this feature may seem like a dream. Let's say an influencer with a million followers goes to your café and later posts a picture having lunch at your café. You might think, "What a great opportunity, I should repost this on our café's social media page."
However, reposting something on your page could also subject you to infringement or misappropriation. You might have tagged the influencer and given them credit for their original post and content, but that might still not be enough. Unfortunately, you could easily find yourself in an infringement or misappropriation case. This is doubly true if it involves commercial use. It was their original work, so their permission may be required before you can share it.
Thinking twice before you put anything on your company's social media page is always a good call.
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