Blog - April 2020 - Social Media And Copyright Infringement

book with copyright symbol and currency symbols on the cover Social Media and Copyright Infringement - April 2020.

Copyright infringement took a new turn recently after an American court decided that an image allegedly lifted from an Instagram account and used on a website did not infringe copyright law. This is a big moment for creatives as it might be the final nail in the coffin of sharing work on social media sites for the purposes of marketing to potential clients with the expectation that doing so comes with protection from copyright law. (Read about the case here.)

The court found that the photographer accepted the Instagram terms and conditions when they created their account and therefore has to accept that a third party can use those images posted to the site as per the siteís terms.

We all know that the cornerstone of copyright law is that the creator of the work (or the owner of the copyright) has the absolute right to exploit the copyright-protected work, usually for financial gain. This new ruling though would seem to indicate, at least in the USA, that the work can be used for free.

Iím not a legal expert but Iím expecting this case to go through further court hearings as itís unlikely to stop at this early stage this could of course mean that the findings of the lower court are reversed and weíre back to square one. But, what if that decision is held firm by those more senior courts?

For most creatives sharing work on social media is a fact of life as itís seen as one of the ways we get recognition. Before these platforms were ubiquitous creatives had to market their own material though some very expensive channels such as a printed portfolios, a website, advertising and catalogue production and letís not forget trailing around to meet clients. All of those marketing channels cost money and with most advertising identifying an actual return on that investment was and still is difficult. Indeed marketingís something of a black art whatever platform is used. Itís worth noting here that these older methods still have merit. Thereís no doubt a well-presented Ďbookí can be a thing of beauty and something to be proud of when passed across to an art director or editor. Websites are still seen as a way of advertising too but if the creative decided they didnít want to use any of these and rely only on social media it perhaps wouldnít be the end of the world but at what cost?

When social media appeared it quickly became clear it offered us the chance to connect with our peers and people potentially interested in our work anywhere around the world, for free. No sprprise then how quickly it took off. Creatives have built new careers by embracing social media and its potential to market to a massive audience.

That then is all well and good but what happens when a creative see their work taken and used in ways that they didnít authorise? With those huge audiences there will always be people who want to take advantage of the freely and easily available creativity for their own ends and really this should be seen now as a fact of life when sharing work. It would be naÔve to assume that Ďit wonít happen to meí. It will.

What though is the alternative? If we decide to stop posting to social media with that loss of a marketing channel weíre looking back towards the traditional tools again to get our work out there in front of an audience. Thatís an immediate time and money investment.

Perhaps another way to look at this is to ask whatís the risk and what is the cost of that risk? The risk of a traditional marketing strategy is paying for all of those beautiful products we deliver to a very select audience and the risk is nobody calls us back to offer us work. The risk associated with a free social media post is that potentially someone exploits our work and doesnít pay meaning we lose the income.

Iím 100% for creatives being paid for their work at all times but also recognise the benefits of social media as a free marketing tool. I think the opportunity to market to that massive audience outweighs the potential risk of lost income from copyright abuse. If a piece of work is considered so valuable then it probably shouldnít go on social media. Being creatives though we like to show our best work and not showing something because itís so good will be hard to swallow. Still, risk showing or keep it to ourselves? A quandary Iím sure weíll all face at some point.

The creative has a choice of how they show their work. Each method has costs and risks. This question will be around for some time as I donít see the popularity of social media going away anytime soon. Do we embrace social media and the risk of lost income to trade for the benefit of free exposure or rely on costlier traditional methods? What do you think?

All images © Peter Hatter

Article Date - April 2020

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