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Social Media and Intellectual Property: When Sharing Might Not Be Caring

February 9, 2022

Social media content contains a ton of intellectual property (IP) and, even though most social platforms revolve around sharing content, you might be surprised to learn that content isn’t always free to use and share with others. To avoid having posts removed, being kicked off platforms or receiving nasty letters through the post, you, therefore, need to be careful with what you post and share on social media. And if you're a business or an influencer, the need to be careful increases tenfold.

Unfortunately, social media platforms don’t make it easy for users to navigate issues and know what is and isn’t acceptable use of content.

For example, whilst YouTube, Instagram and Facebook all have terms and conditions which say you must not use third party IP without permission, and reserve their right to remove content which they believe breaches that rule, they will simultaneously provide users with hundreds of proposed music tracks to add to user content at the click of a button. Talk about mixed messaging!

On top of a potential breach of platform terms, users could also face legal action from the original IP owners too. Dealing with this can be both costly and time-consuming and we are regularly asked questions about what is and isn’t acceptable when it comes to sharing IP on social platforms.

So, what kind of IP are you likely to encounter on social media and how can you protect yourself?

In essence, virtually all types of IP could be infringed by use on social media, but the most likely types are:

  • Trade Marks and logos: Names and logos are regularly used on social media for advertising products and services, both artistically (think pictures showing brand names and logos) and verbally (think hashtags, advertisements, tags). However, generally speaking (and subject to certain exceptions) you cannot use someone else’s trade mark or logo without their permission.
  • Copyright: this is a very wide right covering all sorts of creative works. For example, copyright protects pictures, videos, blogs, product designs, music and software. Once again, the clue is in the name - copyright provides owners with the right to stop someone else copying their work without their permission.
  • Designs: Lots of businesses now sell through social media, and for some, it is their sole route to market. In advertising their new product designs, they are therefore sharing protectable IP and may be able to prevent others from selling products to those designs via social media, or other channels.

What should I absolutely NOT be doing on my socials?

Having represented many clients in relation to their use of IP on social media, these are the main issues we tend to see on social media:

  • Relying on that 80’s power ballad, or Dr Dre’s beats to really give your content the extra ‘pop’. You are well aware that you can’t illegally download Taylor Swift’s new album on Limewire anymore, so why should use on socials be any different? Be very careful using third party’s music on social media; it is likely you don’t have the right to use it, and despite how easy the platforms make it, using unlicensed music can get you in deep, deep trouble. Do your checks to see if your use is allowed by virtue of the platform’s agreements with artists, or choose from the range of royalty free sound and music the platforms provide.
  • Getting paid to promote content for others, but not declaring the underlying dollar to the world. In addition to IP, there are serious advertising laws and standards which require influencers and advertisers on social media to declare when they are being paid to promote a product. So, if you are paid for it, make sure you tell your followers - don’t just pretend to love the stuff you are selling (even if you do!).
  • Hashtag someone else’s brand to widen the reach of your posts. Using someone else’s trade mark for your own commercial gain is also a no-no, particularly if your product competes with theirs.
  • Copying cool products that seem to be selling well through social media ads. Just because sellers on social media may have smaller businesses, and share their designs widely, does not mean those designs aren’t protected. Many product designs will attract some form of unregistered design protection and so be very careful if this is your business M.O.!
  • Jumping on the latest TikTok trend. Many of the posts that go viral on social media and start trends across the world, will have copyrighted music, film clips or artistic works in the background. Just because they’ve gone viral and everyone seems to be sharing them, don’t assume you can. Keen to find out more about the legal issues related to TikTok? Discover how the platform is evolving in the context of privacy here.
  • Going on a sharing frenzy without checking ownership  – Just like with memes, images, reels and other content will often include copyright works. There are lots of myths out there about Instagram claiming ownership of your photographs, and works being free to share once uploaded, but this isn’t the case. Instagram will be granted a licence to be able to use and share your content, but that applies to the platform itself and not all of its users. You’ve seen the models being sued for sharing paparazzi pictures; content is money, so be careful how you use it.
  • Adding logos to your posts, to show who uses your services or which brand is your fave. As well as being trade marks, logos are also copyright works. Use of them without permission is likely to infringe at least one form of IP, as well as breaching the social platform’s terms, which often insists that you do not infringe third-party IP with your online activity. So even if you think you are being a super-nice super-fan, the brand may not see it that way.

Need further advice?

From startups registering their first trade mark, to companies with large portfolios, we’re the intellectual property experts who get the job done. Find out about our intellectual property offering here.

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