Does Social Media Content Have Intellectual Property Rights?

Whether you are a digital content creator, social media influencer, or a small business that uses social media to gain clients and customers, intellectual property (“IP”) is something we all create, encounter, and need to be aware of on social media. 

What is intellectual property?

You can think of intellectual property similarly to physical property (like a house or a car). It is something you own that enjoys legal property rights. But unlike physical property, intellectual property includes intangible assets – assets that aren’t physical in nature. 

What types of intellectual property are in social media?

As you can imagine, social media is full of these intangible assets, or different types of intellectual property. The most common forms you will encounter on social media are copyrights, trademarks, and logos. Copyright covers a broad array of creative works, including music, videos, photographs, and more. Copyright allows owners of a creative work to prevent people from copying their work without permission. 

Trademarks and logos are typically used in social media to advertise a business or creator’s products or services in connection with the trademark or logo. Trademarks and logos cannot typically be used without the owner’s permission. 

“Even hashtags can be registered trademarks. However, like all trademarks, a hashtag needs to be connected specifically to a business’ goods or services, and it does not prevent others from using the hashtag in unrelated topics.”

Even hashtags can be registered trademarks. However, like all trademarks, a hashtag needs to be connected specifically to a business' goods or services, and it does not prevent others from using the hashtag in unrelated topics.   According to the United States Patent and Trademark Office’s official guidelines: “A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.” Some examples of successfully registered hashtags are #smilewithacoke and #cokecanpics from Coca-Cola; #makeitcount, from Nike; and #McDstories, from McDonalds. 

Potential issues with intellectual property in social media

Understanding potential legal issues with intellectual property in social media is important – especially for content creators and business owners who rely on social media as a stream of income. 

Whether you use Instagram, Tik Tok, Facebook, YouTube, or any other platform, it is crucial to understand your intellectual property rights so you can better protect your assets from infringement, and so you do not infringe on others’ intellectual property and run into potential legal liability. 

The law around intellectual property and its implications for social media can be confusing, especially when it comes to exceptions. For example Fair Use is “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.”

Furthermore, social media platforms’ intellectual property guidelines and terms of service are also not typically straightforward. Each platform also has its own nuances to its own set of rules, and there are many issues you can run into with each. 

Advertising Rules 

Most platforms have specific rules regarding advertising. For example, Instagram has specific guidelines and steps regarding advertising for another brand or company. You must disclose to your followers when you have a paid advertisement, no matter how much you love the product. These guidelines can be found on Instagram's Branded Content Policy page: “We define branded content as a creator or publisher's content that features or is influenced by a business partner for an exchange of value, such as monetary payment or free gifts. Branded content may only be posted with the use of the branded content tool, and creators must use the branded content tool to tag the featured third party product, brand, or business partner with their prior permission.”

There are other governing bodies with various rules depending on your jurisdiction. For example, the United Kingdom’s Advertising Standards Authority (ASA) sets its own rules and regulations for advertising. 

Music 

Anyone using social media can run into deep trouble from using unlicensed music. Some platforms provide royalty-free music. For example, YouTube has a large library of royalty-free music that you can use on your videos. However, if you upload copyrighted material, such as a song cover, you run the risk of certain monetization issues. For instance, the owner of the copyright could take up to 100% of your profits on your video content. 

Tik Tok Trends 

Although things will go viral in an instant on Tik Tok, these same trends can later be pulled down due to some form of intellectual property infringement. Tik Tok has licensing agreements with major music publishers, such as Universal Music Group and Sony Music, but around 50% of the music on Tik Tok remains unlicensed. This means that the platform and its users do not have permission from the copyright owner to use this unlicensed content. It is important to be careful before hopping on the latest trend as you could run into potential intellectual property infringement which can lead to your content being removed by Tik Tok or even potential legal action from the true IP owner.

Instagram Photographs 

There is often confusion around Instagram’s Licensing Agreements regarding its users’ photographs. However, just because Instagram retains a license to use and reshare its users’ photographs, does not mean its users can do the same. Third parties are governed by copyright law, so sharing someone else’s copyrightable content on Instagram could be copyright infringement. 

Instagram's Terms of Use make it quite clear that you must either own or have permission to use the content you post or share.  You can't "do anything that violates someone else's rights, including intellectual property rights (e.g., copyright infringement, trademark infringement, counterfeit, or pirated goods). You may use someone else's works under exceptions or limitations to copyright and related rights under applicable law. You represent you own or have obtained all necessary rights to the content you post or share."

Even if you don’t have many followers, don’t know you are infringing on someone’s content, or don’t have the intent to infringe, that does not necessarily insulate you from liability. Just because someone posts on Instagram does not mean their content is now free for the public to use in any way. Copyright exceptions, such as Fair Use, can protect from liability but only in very specific circumstances. It is important to understand these nuances when resharing third party content on Instagram.  You can learn more on Instagram’s Intellectual Property Page. 

Resharing Protected Content 

Protected content can take many forms. As mentioned before, even hashtags can be trademarked. It is important to be careful on any social media platform before resharing content, as you run the risk of decreasing your monetization, or even having your content removed. 

It is important to understand intellectual property rights in social media and the importance of due diligence. In addition to violating a platform’s terms, which can result in content being removed or even your account being deleted, when you violate intellectual property rules or laws, you may also face legal action from the true IP owner. Not only is trademark or copyright litigation costly, but it is also time consuming. Conducting due diligence first can help address risks and avoid these issues all together.

How we can help

Having a better understanding of your intellectual property rights on social media can help increase monetization. Avoiding legal pitfalls can help ensure your content stays posted and your account stays secure. Furthermore, you can also develop a better understanding of how to run your business and increase revenue on each platform.

If you want to learn more about intellectual property due diligence or how to protect your intellectual property on social media please call us or  contact the BCR Firm. We can help you protect your IP rights and assets through trademark and copyright registration and due diligence.