Advertising Law Tool Kit - Tenth Edition | 2022

20 / Venable Copyright Issues with Social Media The use of third-party photos in social media (and advertising generally) is a commonly misunderstood – and risky – area. IP Rights of a Photo • Photos comprise multiple IP rights. The first is copyright, which is owned by the photographer or their assignee, or in a work-for-hire situation by their employer or the commissioning party with a work-for-hire agreement. Using a photo without authorization is copyright infringement, absent the photo being in the public domain or fair use, as discussed below. Second, IP rights may exist in the subject of the photo itself: right of publicity for a person; trademark rights in a logo, product, or even location; additional copyright in art, sculpture, or other creative works; privacy or location rights for the place; or music rights if the imagery is a video or a gif with accompanying audio. Obtaining Authorization Is Key • The same traditional rules of intellectual property law apply in the social media context: you must have permission to use the photo, unless it is in the public domain or it is a fair use (which is subjective, fact specific, unpredictable, and often not met, particularly in commercial advertising). The mere fact that a photo is on the Internet or posted on a social media platform does not mean it is in the public domain or free to use. Using and Sharing a Photo from Social Media • Within the Platform. The terms of service (TOS) on most platforms allow resharing within the original platform, such as retweeting, which covers you on the copyright (unless the original poster did not own the copyright for the photo). It is worth reviewing the TOS for your most-used platforms to understand the rights you grant when posting and the rights users have granted to other users. • The rights to the subject of the photo (right of publicity, trademark, or other) are typically not granted in the TOS, so you will want to be cautious Alexandra Megaris amegaris@Venable.com +1 212.370.6210 Linda J. Zirkelbach ljzirkelbach@Venable.com +1 202.344.4410