These days you have to be a dinosaur not to have at least one online profile, be that on LinkedIn, Facebook, Twitter, Second Life or more recently Pinterest. The media and consumer rights groups constantly warn us to protect our privacy and be wary about sharing our ideas, secrets and personal details online. As the economic value associated with social media profiles soars, new legal issues are constantly coming to light. Particularly relevant is the question of who owns the rights to our online lives.
This article examines the intellectual property issues which arise in relation to online profiles, analyses the positions taken by major online players, and warns against the pitfalls and dangers faced by consumers.
Online Profiles
An online profile can encompass a range of user generated ‘personalities’. Traditionally discussions have centred on fully fledged avatars in Second Life or players of online games as these appear to have lives of their own – taking actions and interacting with others. More straightforward online profiles such as Facebook, Twitter or LinkedIn profiles tend to have been neglected, perhaps because their role evolved from yearbook profiles or equivalents (in the case of Facebook or LinkedIn). In the hard copy world, a yearbook was personal in nature and, in the average person’s case, hardly something to be concerned about legally. In the online world, these objects have migrated towards being more and more public, as well as more and more customised. As competition between information society services, in particular social media sites, has grown, they have added more functionality – in particular the ability to interact and share media has become more complex, with the sites therefore holding more valuable information. Crucially, we each develop our own online profiles for each of these types of sites, imparting a little of our own personalities and our own creativity as we do so.
In this article we therefore look at how copyright applies to social networking profiles, as well as to the music, text updates, photos, videos and other information uploaded by users (the ‘Content’). We encourage the reader to consider the myriad of different profiles that he or she has and how these rights might apply to them.
Copyright in Social Media
The primary purpose of copyright law is to reward authors for the creation of original works. User-generated content is a murky area of copyright law. Who is the author? Is the content original? How can it be infringed?
Given that with online profiles it will often be difficult to ascertain which country the work was originally published in, it may be necessary to consider copyright law across a number of jurisdictions. However, for the purpose of this article we have limited our analysis to English copyright law.
To date the courts have held that a graphic user interface must be protected by the ordinary law of copyright (assuming the work is original and that it could not be protected as a computer program).[1] We therefore proceed on the basis that an online profile should be considered in much the same way as any other work. It is likely to consist of an original literary, musical and/or artistic work. It may also be arranged in such a way that the typographical arrangement of the profile is protected or that it constitutes a database.
A literary, dramatic, musical or artistic work must be original in order to qualify for copyright protection. However, in contrast to the continental European approach, it generally does not matter if an artistic work has no artistic merit. The decreased emphasis on artistic merit under English copyright law is particularly relevant in the context of much user-generated content.
Artistic works can encompass photos, avatars and graphics incorporated into a profile. The ECJ has recently considered[2] how the concept of originality applies to photographs, in particular portrait photographs which are simply a ‘realistic image’. The ECJ held that portrait photographs can enjoy protection if they are original. Originality can be achieved where photographer makes free and creative choices – eg in relation to the subject’s pose and lighting, framing, or the angle of view – which stamp the work with his ‘personal touch’. On the other hand, components of a graphic user interface which are differentiated only by their technical function cannot be original since different methods of implementing that particular idea are limited.[3] Today’s avatars or other graphical user profiles may have a defined structure but they are generally customisable by the user to a level exceeding their technical function; therefore it is likely that many avatars will have the necessary level of originality.
Literary works can be very short and still attract copyright as long as they are sufficiently original. The ECJ has held that an extract as short as 11 words can be protected by copyright.[4] The Court held ‘if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation‘ it will be original. Excepting any purely factual tweets, a 140-character tweet would therefore almost certainly attract copyright.
Where material is protected by copyright, two fundamental questions must be asked: (1) Who owns that copyright? (2) Who can use the work?
Your Content
An online profile is likely be comprised of works authored by the person whose profile it is, but will often incorporate material authored by others (photos taken by friends, quotations from favourite films etc). The owner of the site on which the profile is used is likely to own some rights in the typographical arrangement of the work and the database constituting the web site. Importantly social networking sites will have made sure that copyright in the content of their sites is licensed to them (and indeed this is clearly necessary to provide the services):
· Facebook’s terms and conditions provide for a ‘non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP Licence).’
· MySpace says that ‘By posting any Content on, through or in connection with the MySpace Services, you hereby grant to MySpace a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content’.
· Twitter provides that ‘You grant us a worldwide, non-exclusive, royalty-free license (with the right to sub-license) to use, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content’.
· LinkedIn states ‘You grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including, but not limited to, any user generated content, ideas, concepts, techniques or data to the services, you submit to LinkedIn, without any further consent.’
· We understand that Pinterest’s terms and conditions are under review further to user feedback regarding the copyright of their content.
The licences granted to the service providers are not surprising – they are non-exclusive, royalty-free and give the service providers a wide range of rights. It is also notable that there is no assignment of rights. However, the right for users to withdraw their Content is less clear. Before sharing Content, Content owners should note that:
· Facebook states that the ‘IP License ends when you delete your IP Content or your account, unless your content has been shared with others, and they have not deleted it.’ (emphasis added).
· Twitter provides the following helpful ‘tip’: ‘This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same‘.
· MySpace informs users that, once the user has posted content as non-private and that content has been used or distributed by others, ‘MySpace is under no obligation to delete or ask other Users or a Linked Service to delete that Content, and therefore it may continue to appear and be used indefinitely’.
· LinkedIn says that the user owns the information that he or she provides to LinkedIn and may request its deletion at any time, unless the user has shared information or content with others and those others have not deleted it, or unless it was copied or stored by other users.
It is clear from these extracts that a user can delete his accounts and with it his Content – but this does not give him a contractual right for that content to be removed from the service if it has already been shared. This will come as no surprise to some, indeed social media would find it very hard to function otherwise. The key point for users to remember is that, once their Content is public on a social network, it may be very difficult to use contractual or IP rights to prevent further use of their works on the service. Since, in many cases, the licence granted by the user to the social media site will continue after that user has deleted his account (ie because Content is already shared) it is not clear that Content owners will be able to restrict others from continuing to use their Content. If, as suggested below, re-sharers of Content have an implied licence to use such Content as part of the service then it seems likely that that implied licence would continue to exist until such time as the head licence between the Content owner and social media site is terminated.
Employees using social media at work may also want to consider what rights their employer may have over their personal social media accounts, as legal issues concerning the ownership of social media contacts by employers have begun to crop up. One recent example of an employer suing a former employee over ownership of Twitter contacts is the US case of PhoneDog.com.[5] PhoneDog is suing ex-employee Noah Kravitz for actual and punitive damages of $2.50 per follower per month, claiming that Mr Kravitz did not have the right to take his Twitter followers with him when he left the company as they, and the account password, were trade secrets. The issue was not addressed in his contract of employment but it is notable that Mr Kravitz changed the name of the account (from @PhoneDog_Noah to @noahkravitz) on leaving PhoneDog. At that time he had approximately 17,000 followers and now has around 21,000, meaning that he is being sued for a substantial $340,000.
A similar question has been addressed by the UK courts in respect of LinkedIn contacts. In this case a former employee of Hays (a recruitment firm) was ordered by the High Court to hand over business contacts made on his personal LinkedIn page during the course of his employment.[6] It was held that contact information gathered in the course of employment constituted confidential information which remained the property of the employer.
Other Users’ Content
Users may not have reservations about social media sites having a licence to use their Content, however they may find themselves unwittingly infringing a third party’s copyright in a number of ways:
· by copying a copyright work
· by issuing copies of the copyright work to the public
· by performing, showing or playing a copyright work in public
· by communicating the work to the public.
The first of these is seemingly the most straightforward: in the absence of consent, by using a friend’s, or a third party’s photo as a profile picture, you infringe artistic copyright in the work. Following NLA v Meltwater,[7] by posting a link accompanied by the headline of an article on a social networking site you may infringe copyright in the page to which that link directs users and/or copyright in the headline of the article.
By re-tweeting a tweet you infringe the literary copyright in that work and by re-pinning a photo you infringe the artistic copyright in that work. The nature of Twitter/Pinterest means that it is likely that you are granted an implied licence by the copyright owner to re-tweet or re-pin their work, however this may not always be the case. Recently Miss Universe contestant Vasuki Sunkavalli was found to have been tweeting Wall Street Journal columnist Sadanand Dhume’s political commentary as if the tweets were her own. Although no action was taken, this serves as a reminder of the importance of abiding by Twitter etiquette. When one re-tweets one is supposed to mention the original tweeter in order to give them credit for that tweet. This doesn’t negate the fact that the tweet is being copied (and although ‘sufficient acknowledgement’ applies to the defence of criticism or review, it does not apply as a general defence), but it does appear to make the copying acceptable from a social point of view.
Making a recording of a musical work available on a web site can amount to performing the musical work in public, so as to infringe the performance right. Beware therefore if you link through to YouTube, or even to a friend’s home video.
Communicating works to the public means, amongst other things, making the work available to the public, which creates a broad scope for infringement. The full scope of the ‘making available right’ has yet to be fully explored in the UK courts. It is not clear whether framing an image from a web site or merely providing a link to a web site without the permission of the web site owner will always amount to making that web site available to the public so as to infringe. However, intervening in a material way to provide a service that is ‘not remotely passive’ involving the provision of links to a web site will constitute making the web site available.[8] The High Court has recently confirmed that both users and operators of file-sharing sites infringe content owners’ copyright.[9] By analogy, users of social media sites may also infringe, and based on the potential infringing acts occurring, it seems safe to say that we all inadvertently infringe copyright repeatedly when using social networking sites.
So what do the sites’ terms and conditions have to say about this? Although most of the services mentioned above (Facebook, Twitter, LinkedIn) obtain a right to ‘sub-license’ the Content provided by users, the terms and conditions do not grant any sub-licence to users to use such Content. This creates an issue for the ‘content re-sharer’ who does not necessarily have a licence to create a copy of any Content which has been lawfully uploaded by the content owner. This is unlikely to be problematic in the majority of scenarios. However, we note that significant questions could arise and have arisen over the right to re-share such material:
(i) where the owner has decided to remove the Content – in November, for example, Tori Spelling’s husband, Dean McDermott, accidentally posted a topless photo of the actress on Twitter (in the background of a baby photo);
(ii) where the original uploader never had the right to upload the Content – the Ryan Giggs case showed how easy it is for users of Twitter to potentially become embroiled in legal battles through simply using the Re-Tweet function (thereby re-posting confidential information which was subject to a so-called ‘super-injunction’).
Conclusion
As social media evolves, so does the complex web of intellectual property and other rights associated with online profiles and user-generated content. There are three parties with conflicting rights: consumers, employers and social media sites themselves. So, when using social media, be aware that:
· the Internet is not a copyright-free zone: just because someone has uploaded content does not mean that it is free to be used
· conversely, if you upload content the owner of the relevant social media site may have rights to that content – and once you share that content it is very difficult to take it down
· any intellectual property created in the course of employment is, generally speaking, the property of your employer, and this can apply to social media contacts – to minimise the risk, check your employment contract, create and expand your profile and contacts list at home and out of office hours, and don’t use your employer’s name as part of your online name.
It will be interesting to watch case law in this area evolve, and to see what issues arise with the next generation of social media sites.
Four Top-Tips to Protect Yourself and Your Content
1) Don’t assume you can re-use any content on the service. Copying or re-publishing infringing content may get you in hot water.
2) Make Use of the privacy settings offered by the service providers.
3) Pause before sharing your valuable Content with the world.
4) Remember that the intermediary defences may benefit the service providers, but they won’t save you.
Alastair Cox is an associate at Baker & McKenzie LLP in London who specialises in e-commerce, media and technology, working on both contentious and non-contentious matters. He has extensive experience advising on the regulation of online media, including linear and non linear content: Alastair.Cox@bakermckenzie.com
Iona Harding is also an associate at Baker & McKenzie LLP in London. She is an intellectual specialist whose practice encompasses a mix of both contentious and non-contentious work: Iona.Harding@bakermckenzie.com
[1] Case C-393/09 Bezpe?nostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury [2011] F.S.R. 18
[2] Case-145/10 Painer v Standard VerlagsGmbH and others
[3] Case C-393/09
[4] Case C-5/08 Infopaq International A/S v. Danske Dagblades Forening [2009] ECR 1-0000
[5] PhoneDog v. Kravitz, 2011 WL 5415612 (N.D. Ca.; Nov. 8, 2011)
[6] Hays Specialist Recruitment (Holdings) Ltd & Another v Ions & Another ([2008] All ER 216)
[7] The Newspaper Licensing Agency and others v Meltwater Holding BV and others [2011] EWCA Civ 890
[8] Twentieth Century Fox Film Corporation and others v Newzbin Ltd [2010] EWHC 608 (Ch), 29 March 2010
[9] Dramatico Entertainment Ltd and ors v British Sky Broadcasting Ltd and ors [2012] EWHC 268 (Ch) confirming Twentieth Century Fox Film Corporation and ors v Newzbin Limited [2010] EWHC 608 (Ch)
