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Posted: July 30, 2013

Sharing copyrighted content on social media

Fair use or infringement?

Tracy Gray and Nicole Day

As the popularity of social media grows, the amount of content that is posted and shared among social media users skyrockets. Users can post or repost their own or anyone else’s content on social media sites, including copyrighted content. 

However, posting other people’s content is not without implication, particularly when it comes to copyright infringement.  While certain uses of copyrighted content on social media sites may be considered “fair use” rather than infringement, understanding the line between fair use and infringement is essential for mitigating legal risks.

Copyright law protects “original works of authorship,” including photographs, videos, and blog posts posted on social media sites such as Facebook, Pinterest, and YouTube.  As a general rule, a person who creates an original work of authorship owns the copyright in the work. 

Copyright holders have a number of exclusive rights, including the rights to reproduce, distribute, and publicly display their works.  Sharing another person’s copyrighted work on social media sites implicates several of these exclusive rights, and constitutes infringement unless a license or permission is obtained from the copyright holder or the use falls within the realm of “fair use.”

Fair use is a complete defense to copyright infringement, however, whether it is properly relied upon is determined on a case-by-case basis.  A court must consider the following four factors when determining whether the fair use defense applies:

  • Purpose and Nature of Use.  Fair use is more easily established if a use of copyrighted material is “transformative,” meaning the use adds something new, with a further purpose or different character.  For example, a search engine’s reproduction of copyrighted images as directive thumbnails was held to be transformative because it served an entirely different function than the copyright holder’s use; improving access to online information versus artistic expression.  In contrast, content is often posted on social media sites mainly for aesthetic or entertainment value.
  • Nature of the Work. Fair use is more difficult to establish when creative works, rather than informational or functional works, are copied.  Courts are also more likely to protect copyrighted works that are unpublished, confidential, or out of print.  Social media users post a wide range of content on social media sites – the specific work posted will determine whether this factor weighs for or against a fair use defense.
  • Amount and Substantiality of the Portion Used.  As the amount of the copyrighted work used increases, the likelihood that the use will constitute a fair use decreases.  Courts will also look at the nature of the copying, including whether the “essence” of the work was copied.  Needless to say, there is no magic number.
  • Effect of Use Upon Market or Value. Fair use is more difficult to establish if the use of a copyrighted work tends to  diminish or prejudice the potential sale of the work,  if it interferes with the work’s marketability, or if it fulfills the demand for the work.  Posting copyrighted material on social media sites could potentially do any of these three things. On the other hand, it could benefit the copyright holder by garnering visibility and increasing demand for the original work.

Ultimately, courts are left with almost complete discretion in determining whether any given factor is present and, if so, the weight given to each factor.  Fair use evaluations may therefore rarely be made with certainty.  Instead of solely relying on a fair use defense, consider taking the following steps: 

  • Check the original source of content for copyright notices or information about how the content may be used.  When in doubt, obtain a license from the copyright holder. 
  • If copyrighted content is posted by other social media users, check the social media network’s terms and conditions for authorization to re-post the content.  For example, under Pinterest’s Terms of Service, a user who posts content on Pinterest provides all other users a license to use that content on Pinterest.
  • Instead of posting copyrighted content directly on your social media page, post a link to the original source containing the content.  While giving attribution to the original source is not a defense to infringement, it may help reduce the likelihood of receiving a complaint and supports a fair use defense.

Be cautious and seek the advice of counsel before sharing content belonging to others on social media sites.  Taking proper steps to mitigate legal risks helps maximize the enormous benefits of social media participation. 

Tracy Gray is a partner in Holland & Hart’s intellectual property practice who counsels clients on intellectual property commercialization, internet, privacy, and consumer protection issues. She can be reached at tbgray@hollandhart.com or 303-473-2703.

Nicole Day is an associate in Holland & Hart’s intellectual property practice who advises clients on matters including intellectual property commercialization, protection strategies, internet, privacy and data security issues. She can be reached at nfday@hollandhart.com or 303-473-4803.

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