In the past two decades, online social networks have grown at an astonishing rate.
According to the Pew
Research Center’s latest study, about 72% of U.S. adults today use at least one
social media site, compared to a mere 5% in 2005.[1] The rise of social media
redefined the traditional boundaries of communities and provided us with
unparalleled ease of access into other people’s lives.
Yet,
this great accessibility also leaves us at constant risk: our information is
always just a few clicks away from being stolen. This is a concern for artists
and content creators who post their work on social media sites, as infringers
can generate substantial profits by distributing virtual works without
authorization. For independent artists and less established businesses that
share original works online, such infringements could be particularly
devastating.
Consider the following scenario:
Lina is an artist who often posts her work on social media to promote her
business. However, her efforts thus far have only yielded limited success. But
while browsing online, an article mentioning an award-winning drawing caught
her attention. Much to her surprise, the drawing looks almost identical to one
of hers on her social media account. And after taking a close look at the
artist’s website, she found more listed drawings that looked like her works.
Unfortunately, this vicious phenomenon then prompts the question: What can artists
and small businesses do to preemptively protect their original works from
exploitation?
The
answer is copyright protection. Copyright is the intellectual property
protection that protects original works of authorship including literary,
dramatic, musical, and artistic works. Under the broad umbrella of copyright,
you could protect your original novel, movie, song, art, computer software, and
even architecture from unauthorized uses.[2] Thus, if your business posts
original photos or videos on social media platforms, you are creating and
sharing original works that would likely qualify as copyrighted material.
Although some works you post may be more important than others, please note
that all your posts would enjoy substantial copyright protection if they
qualify as original works of authorship. And as the author of an original work,
you are the work’s copyright owner and have the exclusive right to reproduce,
distribute, and display that piece.[3]
While copyright protection enforcement mechanisms generally focus on
post-infringement reliefs, the high penalties of infringing on a properly
guarded original work would likely deter many potential violators.
Unlike
other forms of intellectual properties where protection only become available
after formal registration, the United States recognizes that copyrights are
immediately effective when the work is published.[4] Nonetheless, it is always a
good idea to register your original works with the Copyright Office, as formal
registration is still a prerequisite for filing a domestic copyright
infringement claim in the United States.[5] Early registration also has
additional benefits. Works registered before an alleged infringement or within
three months of publication would also allow the owner to potentially recover
statutory damages, attorneys’ fees, and costs, on top of the monetary damages
caused.[6]
Hence, the added protection of registered copyright would likely be more
effective than a non-registered one in warding off potential infringers.
In
addition, for copyright owners intending to circulate their work, the U.S.
Copyright Office suggests that they should include a copyright notice in their
original posts.[7] A
copyright notice is just a statement placed on copies of a work that informs
the public that an individual has claimed ownership of it. Again, while the
inclusion of a notice does not automatically prevent others from infringing on
your work, it may nonetheless deter some individuals from doing so. And for
published works, a clear copyright notice prevents the infringer from later
claiming the innocent infringement defense to limit damages—the argument that
he was unaware of any copyright ownership and should be punished less severely.[8] If
you are interested in learning more about how to draft different notices for
the various types of protected works, the Copyright Office has provided clear
guidelines on the subject.[9]
However, for your reference, Figure 1 below shows an example of an unpublished
artwork with a copyright notice.
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Figure 1. |
But statutory protection is not the only method to protect your copyrights. Popular social media sites often have established copyright policies to guard against copyright infringements. Platforms such as Facebook, Instagram, and Twitter all have provided options for copyright owners to report potential infringements.[10] Generally, these options would require you to provide information on the alleged infringing post(s) and show proof of your ownership over the infringed work. Once your claim is processed and approved by an agent, the platform will likely delete the infringing post(s) or even suspend the offending user’s account. Compared to traditional enforcement methods such as issuing a cease and desist letter or bringing legal action, these platform-specific mechanisms are often more streamlined and accessible for indie creators to protect their products. Thus, you will likely benefit from becoming acquainted with these platform-specific policies if you are actively posting on them.
However,
one should note that all the above-mentioned copyright protection still has limitations—especially
in an online environment where potential copyright infringements might involve
other complications. For example, your artistic works may be shared on a
foreign website without copyright policies, and the potential infringer may be
a foreign citizen. Even though the United States has copyright relations with
most countries throughout the world, enforcing your rights abroad could still
be a challenging endeavor. Notably, you would need to file your copyright claim
in foreign courts where the governing law might differ substantially from that
of the United States. You might also need to retain a licensed attorney in the
said country for bringing this action, which creates additional costs and
procedural barriers for you to enforce the claim.
Ultimately,
while posting your work on social media could be an effective method to promote
your business, one should be aware of the potential consequences before making
such a decision. But more importantly, if you are sharing your original works
online, you should take all the necessary precautions suggested above to guard
against potential infringements.
[3] U.S. COPYRIGHT OFFICE, CIRCULAR 1 COPYRIGHT
BASICS, at *2, https://www.copyright.gov/circs/circ01.pdf.
[5] Id.
[6] U.S. COPYRIGHT OFFICE, CIRCULAR 1 COPYRIGHT
BASICS, at *5, https://www.copyright.gov/circs/circ01.pdf.
[7] U.S. COPYRIGHT OFFICE, CIRCULAR 3 COPYRIGHT
NOTICE, at *1, https://www.copyright.gov/circs/circ03.pdf.
[8] Id.
at *3.
[9] U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S.
COPYRIGHT OFFICE PRACTICES CHAPTER 2200 (3d ed. 2021), https://www.copyright.gov/comp3/chap2200/ch2200-notice.pdf.