“A lot of people are of the view that if something is available on the internet then it is ‘in the public domain’ and they can use it how they will. This is not true.”
With pressure on businesses and social media content agencies to jump on trends at speed, sometimes the legal implications, such as Intellectual Property (IP) and copyright can take a back-seat.
Miryam Boston, Senior Associate in the IP team at Fieldfisher talked to Prolific North about what rights a creative has to their original work, as well as what brands should do to remain within the law.
Do you worry that IP and copyright is being overlooked sometimes in social media?
Yes, and not just in social media, this is a problem more generally on the internet. A lot of people are of the view that if something is available on the internet then it is ‘in the public domain’ and they can use it how they will. This is not true.
The same legal position applies to work online as work in any other context. This attitude can make it challenging to enforce rights online, but if content creators have concerns then they should certainly seek legal advice. If they cannot afford this, there are a lot of resources available to educate creators so they can have a basic understanding.
Another complexity online is that IP rights are territorial. There is some harmonisation, particularly in the EU, but the precise position and manner the law will be applied can vary between countries. This makes it particularly challenging when dealing with online matters where the laws of different countries may be relevant. This is another reason people sometimes take a risk-based approach rather than seek detailed legal advice before taking any action.
So what rights does a content creator have?
The creator of a work is likely to own copyright if the work satisfies the various criteria such as being original, fixed and fall within one of the protected categories of work. If the requirements are satisfied, then copyright subsists automatically without the need for registration.
The duration of copyright for artistic, dramatic, literary and musical works is 70 years from the death of the author – so if the creator is still alive then any copyright will still be in force.
Depending on the type of content, there may also be other relevant rights such as design right. They may also have registered rights such as trade mark protection. The law of passing off may also be relevant if a creator has goodwill and there is a misrepresentation by the third party that they are connected with the creator and this causes damage to the creator.
Do you have rights to your work when it’s uploaded to a social media platform? Do those terms and conditions, that nobody reads, make any difference to your IP?
Terms and conditions cannot alter the existence of IP rights and many sites will actually say that they protect IP rights (and have take down procedures in place to deal with complaints of infringement). However, the terms may state that by uploading the work, the owner consents to certain uses.
This would mean they could not object to uses that fall within this. It is therefore critical that users have a good understanding of relevant terms and takedown procedures when they are using social media sites.
Are creatives protected if their work is reused/reversioned without permission?
If the work is protected by copyright, the rights will be infringed if one of the relevant acts is undertaken without the rightsholder’s permission in relation to the whole or a substantial part of the work and one of the defences is not applicable.
The main act that is often talked about is copying, so if the whole or a substantial part of the work is copied without the consent of the rightsholder (and in circumstances where one of the defences doesn’t apply), this may be copyright infringement.
A substantial part is a qualitative test so there is no golden rule such as ‘changing 5 things’ or ‘only use 5 seconds of a film’. There are separate tests in relation to the other IP rights mentioned above and all could potentially be relevant depending on the nature and content of the underlying work and how it is used. It is entirely possible to create a new work which itself could be protected by copyright, but yet also infringe rights in an earlier work.
What are they able to do?
If an IP right is infringed and the rightsholder decided to sue, the main remedies available at court would be an injunction (i.e. to stop the infringing act) and/or damages (i.e. financial compensation for the use).
However, taking a matter all the way to a court hearing is costly and time consuming. Parties are therefore normally keen to settle the matter amicably and it is often possible to achieve the objectives of an injunction (and potentially damages) through commercial negotiations i.e. contacting the potential infringer and requesting they cease the act.
For a brand, jumping on a trend, or piece of work they like, at what stage does inspiration become a copyright infringement?
Copyright infringement is assessed on all of the particular facts (as per the test mentioned above). If what is taken is a substantial part of the original work, then this may be infringement.
When it comes to inspiration, it also depends on how the work is being used because it may be that one of the fair dealing defences apply if for example the brand has created a parody or a pastiche of the work and is using it in a way which would be deemed to be “fair”. Again, this will involve a detailed assessment of the particular factual circumstances.
Social media particularly is so fast-moving, how important is solid legal advice and protection for brands and content creators?
IP rights are very nuanced and we recommend that everyone who may either create or infringe work has a good understanding of the position and takes legal advice where relevant. Unfortunately, in a lot of cases a party will take a risk based approach and consider that the benefit to their business in a quick post will be greater than the risk that a third party will take action.
It can be expensive to litigate, so small independent content creators may not have the financial means to take action. Furthermore, if the brand is comfortable that, should a complaint be made, they are happy to remove the post quickly (having already taken any benefit from the fast-moving world of social media), they may think the risk is low.
Unfortunately, this can create a tough environment for content creators. Although the law may support the content creator’s position, given the cost and complexity of taking action to enforce their rights, in the fast-paced world of social media, the law may not provide sufficient protection in practice. Therefore, aside from the strict legal risk of infringement, brands and anyone using content created or heavily inspired by third party content, should also consider the matter from an ethical standpoint and if it’s really the right thing to benefit or borrow from someone else’s creation and how they approach this in a sensitive manner.
Miryam Boston is Senior Associate in the IP team at European law firm Fieldfisher, which has an office in Manchester.