Intellectual Property Blog

Are You Sure That’s Free? Content from Others in Your Social Media

Big business owners, small business owners, entrepreneurs, and influencers are all looking for boosts to their reputations that drive traffic and revenue their way. Using the parlance of the 2020s, they are looking to generate impressions and conversions through clever online marketing—usually leveraging the power and reach of social media platforms. Frequently this takes the form of sharing or reposting content already on social media, sometimes with a creative business-specific twist.

Stop. Give those fingers a rest. Let that great marketing campaign you just thought of that relies on someone else’s content breathe for a moment while you assess the risks involved. Ask yourself if you own the content you are plugging into your social media feed. Do you have the legal right to post what is giving you dreams of social media stardom and loads of revenue? Can you license that content for your own use?

Advertising and marketing firms—along with internal marketing departments—exist because marketing costs money and marketing decisions should not be made on the fly. Talented artists and personalities have made a living for generations by crafting and publishing advertising campaigns or endorsing and promoting products Most images or videos online are someone else’s protected content. People forget that fact given the availability and ease with which they can share content and ideas online.

These decisions can come at an enormous cost. Companies large and small are learning their lesson that it costs lots of money to post things on social media without having paid for the rights to do so. Take, for example, the 2014 case where the convenience store chain Duane Reade posted an image of movie star Katherine Heigl to draw people to shop there because, apparently, she did on one occasion. More recently, a photographer who caught a Chevrolet Silverado truck driving through a tornado started filing lawsuits against local Chevrolet dealerships that decided the video provided the best evidence of why people should buy those trucks.

Rights of publicity laws protect the name, image, and likeness of individuals; copyright law protects creators of photographic and video works; and trademark law protects owners of brand names. State and federal law entitles these people and companies to file lawsuits against people who post those images and videos and brand names online for commercial gain. And the cost of defending those lawsuits—much less taking them to trial and paying the resulting verdicts—far exceeds upfront licensing costs associated with those videos.

This isn’t an instruction to never post content on social media. Participating in social media and using the enormous marketing power it provides is vital to business in this era. But don’t let this new digital era where everything seems quick and free and easy lure you into an expensive mistake.

Before you roll the dice on that viral campaign you have up your sleeve that involves this great photograph or video that you found, contact an intellectual property lawyer.

Bruce Paul is a Member of McBrayer PLLC, practicing in the firm's Louisville office.  His law practice primarily focuses on intellectual property, copyright law, trademarks, commercial and business litigation, employment law, and infringement litigation. Mr. Paul can be reached at bpaul@mcbrayerfirm.com or (502) 783-6245. 

Services may be performed by others. This article does not constitute legal advice.