IP and social media: A complicated relationship

It is just as valuable to know how to protect the IP you share via social channels as how to avoid infringing the rights of others.

Social media and IP rights: the basics

Among the social media platforms allowing public posts (i.e., not WhatsApp), Facebook, YouTube and Instagram had the most monthly active users in January 2023, with around 3 billion, 2.5 billion and 2 billion, respectively.

All three are considered critical marketing channels across virtually all demographics, enabling the wide distribution of copyright-eligible content: videos, pictures and text. In fact, depending on the platform's terms of service (ToS), much of that content may be automatically copyrighted the second it is posted. That said, if the situation warrants it and the jurisdiction offers it, formally registering your copyrights at the relevant IP office would be the most legally effective method of protecting your work. To this end, original Twitter or LinkedIn posts, TikTok videos and Pinterest photos are copyright-eligible.

Also, consider "influencers," who build and operate brands almost exclusively through social media. Any business name, logo, symbol, slogan or other trademark-eligible IP they use in this context could, in theory, be registered with the appropriate trademark office. It would have to meet the same requirements as a mark used in conventional marketing and commerce, but once registered, it would be no less valid than a trademark for a brick-and-mortar storefront.

In a nutshell, copyrighted or trademarked content shared via your organization's social media channels can significantly benefit your marketing strategy when used cleverly and optimally protected.

Conversely, certain IP has virtually no place on social media: Posting details of an invention or design you wish to patent would constitute disclosure unless a patent office had first published them as part of the application process. Nevertheless, there would be little practical value to revealing this data — except when publishing defensively, a tactic for which social media is probably not an ideal forum.

As for trade secrets, the operative word is "secret," which social media is inherently not. Every effort should be made to keep confidential information out of the public eye and the hands of competitors.

The perils of peddling influence

All that said, with how social media makes the personal public, distinguishing between the commercial and the conversational has become notoriously difficult. When social media personalities fail to disclose a financial interest in praising, displaying or using specific products or services, they violate laws designed to protect consumers and maintain fair markets. Recently, British woman Sophie Hinchcliffe, aka Mrs. Hinch, had a number of her Instagram posts banned for their "ambiguous" commercial intent. Homecare advisor Mrs. Hinch did not make it clear to her more than four million followers that the cleaning products she was recommending were from her own business. The Advertising Standards Agency in the United Kingdom did not look kindly upon the repeated infractions and ordered them removed. But even she got clean away when compared to multiple U.S. celebrities who did not reveal they were paid to endorse cryptocurrencies.

In October last year, Kim Kardashian settled federal anti-touting charges by agreeing to pay $1.26 million USD in fines to the Securities and Exchange Commission (SEC). The SEC's order found that "Kardashian failed to disclose that she was paid $250,000 to publish a post on her Instagram account about EMAX tokens, the crypto asset security being offered by EthereumMax."

More recently, the SEC fined actress Lindsey Lohan, YouTuber and amateur boxer Jake Paul and several other high-profile performers $400,000 USD each in "disgorgement, interest, and penalties" for similar charges. The lesson to take from all this is whether promoting your own or someone else's IP via social media, discretion – by which we mean forthrightness – is the better part of valor. For housekeeping gurus and pop stars alike, it pays to keep one's nose clean.

Terms of service complications

But the relationship between social media and IP has been rocky from the start. And one need look no further than Facebook's backstory to see how this played out in litigious detail. The site's co-founder (and current Meta CEO) Mark Zuckerberg was famously sued by his former Harvard classmates Cameron and Tyler Winklevoss for allegedly stealing the website's idea and source code. Zuckerberg vehemently denied the claims but settled with the twins out of court in a deal worth $65 million USD. The Winklevosses later believed themselves short-changed by the multi-billion-dollar company, only to be shot down in the 9th U.S. Circuit Court of Appeals. "At some point, litigation must come to an end," concluded Chief Judge Alex Kozinski when denying the brothers' claim they had been defrauded. "That point has now been reached."

In the early "Wild West" days of social media, many platforms either did not police IP infringement or were cavalier about their own involvement. Legendary Haitian photojournalist Daniel Morel had his photos of the 2010 Haiti earthquake used by Agence France-Press and Getty Images after someone reposted them on the (now-defunct) Twitter photo subsidiary, Twitpic. It took Morel three years to beat the two photo services in court, in part because of Twitpic's unclear ToS; other news outlets had settled with Morel for undisclosed amounts before that.

Attempting to read an implied freedom to license to third parties might seem overly cynical today, but some of these sites' ToS technically allowed them to do it. In 2012, Instagram stated it would sell user content to advertisers without compensating the owners, hastily reversing the policy after public (and corporate) backlash.

Since then, numerous sites have clarified the user protections in their ToS to avoid such complications. Nevertheless, Facebook's current terms for individual users, which give the platform a "non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license" to exploit user content (like photos) within its own products, also apply to business users. The issue is not so much that Facebook will use your organization's IP to market itself without permission or recompense but that it can.

Updated laws and remedies

When YouTube first hit computer screens in February 2005, people regularly shared copyrighted material on the site. Now that legislation such as 1998's Digital Millennium Copyright Act (DMCA) and comparable laws in other jurisdictions have had time to establish procedures and precedent, this kind of behavior is that much harder to get away with.

Between new and updated legislation and tools like YouTube's ContentID (and its counterparts on other platforms), most social media-related IP violations are quickly taken down, especially those involving video content or music.

Photos are a trickier subject: Even without getting into areas like AI-generated imagery, consider how individual social media users post movie stills and celebrity photos all the time. The sheer frequency with which this occurs would make any attempt to curtail it an uphill struggle and likely quite unpopular. Meanwhile, the fact that private accounts often do not try to monetize these pictures means that fair use or fair dealing exceptions might apply. That said, businesses have an easier time proving infringement in social media settings if the IP being distributed without permission is a trademarked logo or if they can reasonably argue that the infringer has the goal of monetary gain.

"It's a jungle out there!" Navigating social media

The best way to maximize your IP as part of your social branding while keeping it protected is to establish a firm policy before you take to the internet:

• No undisclosed IP, especially trade secrets, should ever be featured on social media, including on employees' personal accounts.
• Disclose all paid-for endorsements upfront.
• Monitor your competitors' use of IP on social media, remaining vigilant for any material substantially similar to your own. Take immediate action upon discovery by, at the very least, filing a cease-and-desist letter.
• Enforce the same respect for other organizations' and individuals' IP rights that you expect for your own.

In this age of interconnectivity and digital universes, it is paramount to enlist the aid of a partner as experienced with the heritage of IP law as with its cutting edge. Dennemeyer offers trademark protection services and other safeguards for your IP, whether on a storefront or in cyberspace.