In a recent article discussing the challenges that social media influencers face when trying to protect content that is intended to "be shared and liked as much as possible," Bloomberg Law spoke to Washington, DC Intellectual Property partner Michael Justus, who believes there will be a rise in litigation concerning the scope of licenses granted on social media platforms. "If you just have your own website and you post a video, you retain all copyright in that video, and you're not licensing it to anyone necessarily. But if you post that same video on a social media platform, you are automatically granting a license to the platform in those cases and also other users who use it," Michael said.
Additionally, the terms of use on social media platforms may not specifically cover certain unique factual situations, or may be drafted broadly or purposefully vague. As a result, "There's always going to be little gray areas and areas where there might be litigation over the scope of a license granted on these platforms," Michael added.
Describing two class-action lawsuits filed in 2018 against PopSugar by social media influencers, who claimed the pop culture and lifestyle blog reposted misappropriated versions of their Instagram photos, the article explains that there is a renewed opportunity to examine the question of what copyright infringement means in the world of social media, including how to calculate damages and if agreeing to "terms of use" on social media platforms means that influencers' agree to give up certain rights to their content.
Since likes, comments and shares are how influencers make money, one of the issues with IP violations on social media is that it’s hard to distinguish between protecting influencers' rights and making enemies of those who help to promote their content. As such, many intellectual property attorneys are careful about how they represent influencers, and with regards to minor violations, tend to issue warnings or cease-and-desist letters rather than file lawsuits. IP attorneys also have to ensure that influencers do not infringe on IP rights, from making sure they are cautious about how they choose their social media name to examining what they can and can't do in their endorsement deals with brands.
(Read the full article,"Influencers Find It's Tricky to Keep Content and Fan Following," in its entirety; published on June 27, 2019).
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