Social media presents a golden opportunity for small and medium-sized enterprises (SMEs) to expand their reach, connect with customers, and showcase their products and services. However, this vibrant online landscape also presents certain challenges and risks, particularly regarding intellectual property rights (IPR).

IPR represent legal safeguards that protect the fruits of human ingenuity, including inventions, artistic works, designs, trademarks, and trade secrets. IPR can serve as valuable assets for SMEs, enhancing their competitive edge, bolstering their brand reputation, and contributing to their profitability. Of particular significance in the digital realm is copyright, which safeguards the tangible expression of ideas. This extends to a wide range of creative works, such as books, music, paintings, photographs, videos, and software. Original works automatically acquire copyright protection upon creation, granting the creator exclusive rights to use, reproduce, distribute, and adapt their creation.

In the context of social media, copyright applies to content like posts, tweets, stories, reels, and live streams, making it crucial for SMEs to exercise caution when sharing content online.

Posting Your Own Content

SMEs that create original content for social media automatically hold exclusive rights over its reproduction, distribution, display, performance, and modification, unless they choose to transfer or license these rights to others. This ownership empowers the SME to prevent unauthorized use of its content.

However, upon posting content on social media platforms, SMEs also consent to the platform’s terms and conditions, which may impact their intellectual property rights. Some platforms may require SMEs to grant them a non-exclusive, royalty-free, global license to “use, store, copy, modify, adapt, distribute, publish, and display” their content. This allows the platform to utilize the SME’s content for its own purposes, such as, among others, advertising, without seeking permission or compensation.

Other platforms may go even further and explicitly permit other users to share, repost, or remix the SME’s content as long as they provide proper attribution to the original source (e.g. TikTok). While this may enhance the SME’s reach and exposure, it also raises concerns about unauthorized alterations or misrepresentations of their content.

Consequently, SMEs should carefully review and comprehend the terms and conditions of each social media platform before posting their content there. They should also carefully evaluate the benefits and potential risks of granting licenses to the platforms and other users. It is a delicate balance between what’s beneficial from the marketing standpoint and what makes sense from the IP perspective.

Using Third-Party Content

While the allure of incorporating third-party content into social media posts can be compelling, the unauthorized use of copyrighted material, regardless of its origin, poses substantial legal risks and can lead to significant financial losses for SMEs. In other words, SMEs must exercise utmost caution when considering the inclusion of third-party content.

The most prudent approach is, of course, to exclusively rely on original content created by the SME itself. However, sometimes an SME might wish to integrate another party’s content on social media. In this case, obtaining explicit authorization from the copyright holder becomes imperative, unless the content is in the public domain or covered by a comprehensive license agreement.

The repercussions of non-compliance with copyright requirements can be severe, potentially resulting in legal actions such as cease-and-desist letters, injunctions, damages, or penalties. SMEs must recognize the gravity of unauthorized use and take proactive measures to avoid such consequences.  By prioritizing due diligence and respecting intellectual property rights, SMEs can navigate the realm of third-party content on social media with confidence, safeguarding their reputation and financial well-being.

Public Domain

In the creative world, the concept of the public domain is highly valuable. It allows unrestricted access to works without intellectual property protection. This means anyone can freely use public domain materials for commercial or non-commercial purposes, as long as they respect the original creators’ wishes. Public domain works include creations that have expired, been relinquished, or never had copyright protection. This gives the freedom to copy, distribute, modify, and even sell these works without needing permission or royalties.

For example, just recently, in January 2024, the copyright on Steamboat Willie officially expired and the first version of Mickey Mouse officially entered the public domain, resulting in an almost immediate announcement of the horror movie “Steamboat Willie” to be aired shortly.

So yes, public domain is free to use, however, caution is still necessary, as the status of public domain materials and their accessibility may differ across countries or regions. For example, a work might be considered public domain in the United States but not in the European Union, or vice versa. Moreover, another word of caution, like for instance, with the mentioned Mickey Mouse, the later versions thereof, as well as countless trademarks would still protect the rights of Disney. Hence, the scope of what one can do really depends on the particular situation.

Creative Commons

Another option for using the third-party content is to use one licensed under the broad license, like, for example, the Creative Commons. Creative Commons (CC) licenses are valuable tools that provide broad permissions granted by the copyright holder, allowing users to use the work under specific conditions. A usual CC license enables users to copy, distribute, and modify the work, provided they attribute the original source, share it under the same license, and refrain from commercial exploitation.

The CC framework has four explicit conditions that determine the type of license:

  • Attribution condition (abbreviated as BY)
  • Share alike condition (abbreviated as SA)
  • No derivative works condition (abbreviated as ND)
  • Non-Commercial condition (abbreviated as NC)

Diverse combinations of these 4 conditions, give rise to specific license types.

A special case worth mentioning is the CC0 or CCZero license, which essentially means that no rights are reserved. This license provides a degree of freedom comparable to the concept of the public domain (not entirely the same though). In the case of CC0, the license is free and open, with “free” meaning no costs involved and “open” signifying no restricting conditions like ND or NC. Speaking of CC0, it’s important to stress that this license cannot be revoked. If one decides to use a CC0 license, the material will be distributed under “no rights reserved” conditions for as long as it’s protectable by copyright. Even if the creator later decides to stop distributing the work, they cannot change the licensing conditions.

However, this, like any other license, doesn’t mean the copyright holder ceases to be one. A license is a way of granting and determining the conditions of legal permission to use the work, not a way to transfer copyright. Therefore, the copyright holder can still, for example, use their work in any way they see fit, such as commercializing their own projects.

Conclusion

To wrap up, SMEs can adeptly traverse the intricate legal landscape of social media content by adhering to the following principles:

  • Post Only Original Content: Opt for the safest route by sharing content that you’ve personally created. This ensures comprehensive control over the intellectual property rights and significantly reduces the risk of copyright infringement. By producing your own content, you not only showcase your unique perspective but also sidestep potential legal complications.
  • Obtain Permission and Give Credit: If the use of third-party content becomes unavoidable, securing explicit permission from the copyright owner is imperative. Once permission is granted, it is crucial to meticulously credit the original source. Even if content online appears seemingly free for use, it is highly advisable to obtain formal permission or confirm its public domain status. This proactive approach not only fosters ethical content sharing but also shields SMEs from unexpected legal pitfalls.
  • Ensure Content Has a Broad License or Is in the Public Domain: While public domain material is exempt from copyright restrictions, for copyrighted works, it’s paramount to ensure that the license aligns with the intended use. Understanding the nuances of licensing agreements ensures that SMEs can leverage content without running afoul of copyright regulations. By choosing content with a broad license or public domain status, SMEs can confidently navigate the social media terrain while respecting intellectual property rights.
  • Err on the Side of Caution: In situations of uncertainty regarding the legality of utilizing third-party content, exercising caution is advisable. The potential legal repercussions of using unauthorized material far outweigh any short-term benefits. Taking a cautious stance in such scenarios not only mitigates the risk of legal entanglements but also upholds the integrity of your brand and business.

The dynamic nature of social media, coupled with the ever-evolving intellectual property landscape, poses substantial challenges for SMEs. However, by assimilating the fundamental principles of copyright and diligently practicing these guidelines, SMEs can confidently navigate the social media environment. A proactive approach complemented by a clear understanding of copyright laws and licensing agreements fosters a harmonious relationship with social media platforms and efficiently safeguards an SME’s valuable intellectual property. By embracing these principles, SMEs can thrive in the digital landscape, harnessing the power of social media while respecting the rights of content creators.

About the blogpost author:

Maria Boicova-Wynants is a partner with Starks, an IP and International trade law firm in Ghent, Belgium. She holds LL.B. from the University of Latvia, MBA from Vlerick Business School and LL.M. (MIPLM) from CEIPI. Maria is a Latvian Patent and Trademark Attorney, European Trademark and Design Attorney, as well as European Mediator in civil and commercial cross-border disputes for almost two decades. Her main areas of expertise are IP strategy, contracts, and alternative dispute resolution. She is also a mediator and art law expert on the list of the Court of Arbitration for Art (the Hague), and the Mediator on the WIPO ADR Centre’s List of neutrals.