Social Media Influencers are constantly uploading new content in the forms of vlogs, images, videos, and audio. But there is a danger that once their work is out there, it can be replicated without credit or spread in ways that the original poster never intended.
For instance, when the viral TikTok ‘Renegade’ dance took off, its creator, Jalaiah Harmon, was not credited by other influencers copying her choreography. It took a concerted social media backlash for Harmon to receive the recognition she deserved. Similarly, there is an ongoing claim against the video game Fortnite for breach of intellectual property in relation to allegedly replicating a celebrity choreographer’s dance moves in the game.
So how do you protect the content you post and, importantly, how do you avoid infringing the rights of others?
What rules apply?
Social media content is subject to intellectual property rights. In practice, this means that, although an individual’s image or likeness is not itself protected, original works that influencers create may be protected under copyright or registered trademark.
How does copyright work?
The Copyright, Designs and Patents Act 1988 automatically protects original work including photos, videos, audio and social media posts. The threshold for attracting copyright protection is particularly low, so most social media posts will normally fall under its reach.
If your content attracts copyright protection, you get to decide who is granted permission to reproduce your work. This means that people are not free to use your images, even though you have published them on social media.
If another social media user copies a “substantial” part of your work, they may be infringing on your copyright. Substantial is usually defined by the amount of content that has been copied, but can also relate to particularly central features of the work.
The person who reposts your work will have a defence however if they rely on the “fair dealing” exception, where they are commenting on, reporting, criticising or parodying your work.
How does trademark registration work?
Copyright protection applies to original works; copyright will therefore not apply to a person’s name. Since social media influencers are generally found by their name, obtaining a trademark may be an attractive option. You can trademark a slogan, graphic or design that is unique to your brand.
When trying to register a trademark, you will have to show that it is distinctive in relation to the specific goods or services applied for. For example, David Beckham has an EU trademark in relation to haircare products, perfumes and jewellery and former Love Islander, Molly-Mae has trademarked her self-tanning brand, Filter. A social media influencer may want to trademark their name, their handle or a slogan in relation to a set of products or services, which could include, for instance, beauty products, their YouTube channel or a podcast.
Trademark registration is designed to protect consumers from being misled by the use of a logo or marking which is not linked to the official brand. For instance, a social media account might dishonestly use a logo or phrase to increase sales on its own page.
If another social media user uses your trademark in a descriptive, non-commercial way, then it is unlikely to infringe any rights. However, you may be able to take action where your trademark is used without your permission in the course of trade. The social media user trying to use your trademark as their own may also be guilty of ‘passing off’ where you have an established reputation in the UK.
How do I protect my content?
When uploading new content to social media, you should take steps to protect yourself. This could include adding your handle, so that you are credited, or a watermark to images, so that they cannot be easily reproduced. Where possible, you should also incorporate links to your main website, where your terms of use are clearly listed to ensure that people are aware that they will require your permission to repost the content.
What do I do if I my intellectual property rights have been infringed?
If you believe your intellectual property rights have been infringed, it is important to take action promptly to protect your brand. You should record the details of the breach, including the identity and contact details of the person who committed it.
In the first instance, you can try writing to the person who posted your content to ask if they will remove it or, alternatively, pay you for using it. If this fails, you can escalate the matter by submitting an individual report to the platform on which the breach occurred using their reporting tools.
If neither of these routes prove successful, you may benefit from seeking legal advice. As experts in digital threats, media disputes and reputation, we are well-equipped to advise you through the challenges involved in asserting your intellectual property rights.
How do I avoid infringing on someone else’s copyright?
Since people cannot use your audio, videos or images without your consent, you are, by extension, not entitled to use theirs without permission either. The simplest way to avoid infringing someone else’s copyright is to always post original content. It may not be enough to simply credit the creator of the work when republishing it.
It is possible to make use of images that fall under the ‘creative commons licence’ by filtering your image search on Google. You can also make use of free audio libraries on social media platforms to avoid infringing copyright of songs.
You may be breaching social media platforms’ policy if you infringe another user’s intellectual property rights and, in some cases, have your account suspended. It is therefore important that you be proactive and seek advice if you are unsure about posting non-original content.
If you are designing a new graphic or branding, you should conduct some Registry searches to ensure your designs do not infringe on existing registered trademarks.
Atkins Dellow help clients all over the UK with legal matters regarding: Reputation Management, Media Law, Privacy Law, Commercial Property, Business Law, Employment Law, Wills, Trusts, Probate and Family Law. For more information about how we can help you give us a call on 0330 912 8338.
