Advertising Law Tool Kit 13th Edition 2025

Venable / 75 74 / Venable Social Media and Photo Use 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 event 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 careful not to imply an association or endorsement, such as with the words used in your share or the impression made by the share. Linda J. Zirkelbach ljzirkelbach@Venable.com • Outside the platform. Once outside the platform, you will need to clear all rights, including copyright. Typically, the platform TOS do not grant rights to other users outside the platform. Embedding or in-line linking of images is commonly used and encouraged through various APIs. Embedding was previously considered low risk from a copyright perspective because the content remains on the original server and no copies are made. However, the risk of embedding is in flux, as several cases have found this to violate the “display” right in copyright, and there is currently a split in the case law regarding exposure in the context of embedding. Review of the TOS is crucial when embedding, as some platforms have begun to be more specific for that type of use. The bottom line is that best practice is to obtain permission from the rights holder(s) (which may be through direct license or indirectly through the TOS) or share using a link to the original source (without embedding). Also, crediting the original poster is not sufficient. There are a range of options when clearing and licensing content, and different companies have different protocols based on their balance of risk and speed in communication. Regardless, companies should have clear, written guidelines for their marketing staff when it comes to the rights to photos found on social media, which can be violated in the blink of an eye, given the fast pace of social media marketing. Potential consequences: • Significant potential exposure exists for using photos without authorization. For copyright violations, you risk take-downs by the platform, court injunctions, and monetary damages, including actual damages, such as lost license fees, unlawfully gained profits, potential statutory damages of up to $150,000 per photograph, and attorneys’ fees. This exposure can involve costly litigation or a proceeding before the Copyright Claims Board, as well as potential practical repercussions, like having to overhaul a marketing campaign on short notice when your photo is taken down. Furthermore, because most platforms have a “repeat infringer policy,” if a platform receives multiple take-downs for an account, it will eventually close the account (some use three strikes).