Copyright and social media webinar questions

This Kat recently presented a webinar with 4IP and the EU IP Helpdesk titled “What you need to know about copyright and social media” where she discussed the remit of social media - how it is being used and what that means in relation to counterfeit goods; how copyright works on social media; copyright infringement on social media; the terms and conditions of social media platforms; social media in education. You can watch the recording of the webinar here: 

Viewers asked some great questions that we didn’t have time to address, so here are some thoughts on the questions that participants asked:

Do you think Gigi Hadid would have a better chance in her claim for joint authorship following Kogan v Martin (assuming English law applied)

This is such an interesting question! Kogan v Martin is explained brilliantly in this guest Kat post here. And the Gigi Hadid case by this Kat here and here. 

In terms of applying Kogan to Hadid, the first thing that stands out for me is the Kogan view that the question is not “who wields the pen?”, which opens up the discussion since it could mean that the photographer is not the only creator simply because they took the photograph. I think it would be achievable to argue that Hadid was a “collaborator” since the photographer required her to stop and co-operate for the photo to be taken. Moreover, it could be said that, by posing, Hadid contributed elements which expressed her own intellectual creation – by making free and expressive choices (which could include her posture, pose, facial expression, outfit etc.). So, yes, I think that if we applied the Kogan criteria to the Hadid case, an argument could be made out. 

What is your view on the current case of Clearview vs. Google et al. concerning the ""free"" use of images - that is the IP side of this case rather than the possible "surveillance" issue

Clearview is an artificial intelligence company that uses scrapes images online to create a facial recognition database. Google, YouTube, Twitter and Facebook have claimed this breaches their terms and conditions, as well as privacy laws. 

From the IP perspective, yes this would be a breach of the platforms’ terms and conditions. But the question is whether those terms would be enforceable, or not! As we have seen in the French Twitter case, some terms have been deemed unreasonable. My personal, speculative view, is that in these circumstances the terms would not be unreasonable, since they protect the social media platform’s business asset, and ironically in these circumstances, the privacy of the user. 

The strategy of posting on social media would be different if posting on a web site?

In terms of using copyright content, yes. Using a third-party copyright protected image without the use of a licence or the benefit of a copyright exception (see here for more information on exceptions) would be infringement. The risk might be higher in terms of takedown on social media, due to the technology used by the platforms to scan uploaded content. 

"Just because it's what done,
doesn't mean it's what should be done"
Quote: Cinderella
Image: Bryant Wong

Who posts on social media does not agree impliedly to someone else’s sharing of his content? One of the very functions of social media is sharing.

It is true that there is such a thing as an implied licence. In the US “nonexclusive licenses may be granted orally or may even be implied from conduct” [Graham v James (1998) 144 F 3d 229, 235 (2d Cir)]; where an implied licence arises out of “objective conduct that would permit a reasonable person to conclude that an agreement had been reached” [Joe Hand Promotions, Inc v Maupin, No 15, Civ 6355, 2018 WL 2417840, 5]. The UK equivalent would be an implied agreement [Hughes v Metropolitan Railway [1877] 2 APP CAS 439]; or implied contract by conduct [Heis & Ors v MF Global UK Services Ltd [2016] EWCA Civ 569].  This was one of the arguments put forward in the Gigi Hadid case referred to above [Katpost here]. 

However, since the terms of the social media platforms specifically say that users’ agree that they only upload or share content for which they have permission, I don’t see there being a strong case for this argument. Moreover, it is not really a sound argument to suggest that simply sharing something implies that you give a copyright licence for it to be freely used since the principle purpose of copyright is the dissemination of creativity and grants the copyright holder the sole right to copy and share it. 

By crediting the photographer on the shared photo can you protect yourself from infringement?

No. It is an infringement of copyright to use a copyright protected image without permission or the benefit of an exception. Simply crediting the photographer means that you are not breaching their moral right of paternity. 

I really liked your analysis of Instagram's ts and cs. I just wondered if you have you looked at the terms and conditions of communication tools such as Slack and Zoom? Are there possible copyright infringement issues there?

I have not, but Johan David Michels, Christopher Millard and Felicity Turton at Queen Mary University of London have been researching in this area and you may find their paper “Contracts for Clouds, Revisited: An Analysis of the Standard Contracts for 40 Cloud Computing Services” of interest.