When you take a photo with your cell phone or write a blog post or a short story or a poem, in general you are creating a copyright that you own. Under United States copyright law you, as the owner of the copyright in that photo, blog post or poem, are the only one who may lawfully make copies of it and distribute or sell those copies.
You may give others rights to copy and distribute your “works,” as they are called, by granting the other person a license. A license is a contract whereby the copyright owner gives permission to someone else to make copies or distribute copies of the copyright owner’s work. Without a license, generally speaking, making or distributing such copies is copyright infringement. If you are a copyright owner, it is important to grant licenses — or no t— to third parties wishing to use your works. Licenses give a copyright owner some contractual control over how third parties use their works. Conversely, if you are a user of copyrights owned by third persons, you should seek licenses before using that content.
A license is paramount for companies and persons who wish to use someone else’s copyrights so that they will have a defense if the copyright owner sues them for copyright infringement. And, they want that license to be as broad a possible so they can do pretty much anything they want with the other person’s copyrights.
Think about this the next time you post something to Facebook, Twitter, Instagram or LinkedIn. When you take a photo and upload it to a social media site, you own the copyright in that photograph. But the social media site wants to be able to use it: re-post it, copy it, make a movie out of it, put it on T-shirts, whatever. They cannot lawfully do this without a license from you.
That’s why almost all reputable social media sites have a Terms of Service Agreement to which you must agree before you can use the site. These Terms of Service routinely contain an expansive copyright and intellectual property license by which you grant rights to the social media site to use your photo, blog post, poem, recipe, or short story.
For example, the Instagram Terms of Service state: “[Y]ou hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service.”
That TOS continues: “Instagram does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you further agree that Instagram is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.” Virtually all other social media sites have similar language.
So the next time you post something to social media, here are a few issues to consider:
1. Read the Terms of Service and User Agreements that govern your use of social media sites before you click “I Agree.”
2. Before you post, ask yourself if you want to give Facebook, Twitter, Instagram, LinkedIn or whomever expansive right to use and exploit your posted content without liability or remuneration to you.
3. Never post anything you consider to be private, proprietary or a trade secret.
4. Think about the downstream consequences of your posting. What if a person in a photo you post is hiding from an abusive ex-spouse and Facebook decides to broadly disseminate it because you gave them a license to do so?
5. Remember that you are granting the license to the social media site itself, NOT to other users of the site. Register your copyrights and enforce them if other users infringe your copyrights in content you post.
Read before you click “I Agree,” and be smart about what you post. You are likely granting the social media site expansive license rights to your content.