SOCIAL MEDIA


Deciding exactly what—and how—IP can be protected on Facebook or Twitter is a big challenge for trademark and copyright owners. TBO reports.


S


ocial media feature highly in many people’s


lives, providing an exciting way to communicate with friends or a


practical means to share daily experiences and information. But for IP right owners, the thought of


their content being shared and copied by


potentially millions of people within seconds can be enough to strike fear into their hearts.


On Twitter and Facebook, the two most popular social media platforms, content via tweets and status updates can be shared far beyond the scope of immediate friends and followers.


As Leighton Cassidy, partner at Field Fisher Waterhouse LLP, says, protecting rights on social media can be a “double-edged sword”.


“Te viral nature of social media platforms


means that content can be shared at such a speed that it can be impossible to rein it in before it is too late,” Cassidy says.


Ownership


While enforcing rights on social media can be tricky, it is first interesting to consider what can be protected by IP on these platforms.


Mitchell Stabbe, partner at Edwards Wildman Palmer LLP in Washington, DC, says posting a photograph on social media does not usually mean the owner will lose the ability to protect it and act against infringement.


But there are some circumstances where rights can be waived, he says. Stabbe says that the terms of service (ToS) of a social media platform oſten say that by posting a photograph you are giving the website the permission to copy or share it.


Tis is true of Facebook’s ToS, which include the following provision: “For content that is covered by IP rights, like photos and videos, subject to privacy settings you grant us a non-exclusive, transferable,


sub-licensable, royalty-free,


worldwide licence to use any IP content that you post on or in connection with Facebook.”


“You can probably count on one hand the number of Facebook users who have actually read this and understand what it means,” says Stabbe.


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“Of course, just as people who post pictures are not thinking about copyright, people who copy them are not thinking about it either.”


On Twitter, it is less clear what the rules are, says Cassidy.


“On the one hand, Twitter appears to be saying that its users own their content and can presumably control it, while on the other it’s saying it has a broad licence to use that content.”


What happens, then, when third parties use photographs that have been taken from another person’s social media page?


Case study


Tis issue came to the fore in a dispute involving a freelance photographer named Daniel Morel.


Te case dates to January 2010, when Morel posted 13 pictures of that year’s earthquake in Haiti on Twitter.


An editor at news agency Agence France Presse (AFP) discovered the images and distributed some of


them to picture database Getty. Te


Washington Post, a client of Getty, then published four pictures on its official website.


Te AFP sued Morel in March 2010, seeking a judgment that it could lawfully use the photos following Morel’s accusations that the agency was using them improperly.


Morel then sued the AFP and Getty and, following a jury trial, the pair were eventually fined $1.22 million for copyright infringement.


Te AFP argued that it could use the pictures because they were “freely available” on Twitter, but the judge disagreed because Twitter’s ToS do not allow a licence for using images commercially.


Te AFP and Getty have since asked the court to dismiss the jury’s findings and order a new trial.


Cassidy says the “inconsistency” of a social network saying a user owns content but that it also has the ability to use it has not been tested in the UK, but that there have been “similar issues” to those in the Morel case.


Trademarks & Brands Online Volume 3, Issue 2 21


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