Social media platforms have become ubiquitous spaces to share content—YouTube, Wikipedia, Facebook, Twitter and Flickr (to name just a few) make it incredibly fast and easy. Generally there isn’t too much thought or worry about infringement when users within the social media community share a link. Include the link in a post, the attribution pops up straight away, and then we happily post the link along with whatever descriptive content the hosting platform might add.
It is important to recognize that sharing a link to content is not the same as sharing or using the creative work itself. Content usage that involves something more than sharing a link within a community creates a number of “what if” copyright scenarios:
- What if you are creating your own content and want to use images or quotes you have found online that belong to someone else?
- What if you want to include that cool chart or spot-on illustration in an internal training presentation you created or in a blog you write?
- What if you want to play a video at an external conference for industry colleagues?
When it comes to using images, video clips, text or other content that somebody shares with you (or that you find on your own), I have one piece of advice:
Read the fine print!
In this case, the fine print I will discuss involves the terms and conditions of Creative Commons licenses and other terms and conditions attached to “shared” content.
About the Creative Commons license
First a quick history lesson. Stanford Law Professor Lawrence Lessig is the person behind the Creative Commons movement which started a couple of decades ago. He thought creative people would be interested in sharing their works with other creative people for free—permission would not be needed, nor would a fee or royalties or other forms of payment be charged to lawfully use a particular work that would otherwise be governed by copyright law.
Creative Commons (CC) licensing emerged from this movement. It is a type of licensing that provides a way for content creators to allow others to make use of their otherwise copyrighted works, provided the creator is the copyright owner.
Choosing the right CC license
The Creative Commons website provides step by step instructions with help on selecting an appropriate Creative Commons copyright license for the types of allowable uses or conversely the circumstances under which their express permission would need to be granted.
Altogether, six types of Creative Commons licenses are available, including:
- The most flexible—Attribution CC BY—which requires attribution only, even if the work is used commercially.
- Attribution-NoDerivs CC BY-ND—which allows for redistribution, commercial and non-commercial, as long as it remains unchanged and in whole and is credited to the license owner.
- The most restrictive—Attribution-NonCommercial-NoDerivs CC BY-NC-ND—which requires attribution, but does not allow any commercial use or derivative works to be created.
Creative Commons includes a description of each type of license to help creators decide which if any of the license options meets their needs. Copyright owners may also choose to put their works into the public domain.
Creative Commons licenses are real and enforceable
The choice about whether to share content via Creative Commons licenses is not one to be taken lightly by the creator and/or the rights holder. Once a particular work is governed by a Creative Commons license, the license may not be revoked.
Creative Commons licenses are drafted to be enforceable and have been enforced in various legal jurisdictions. The organization makes at least a partial listing of CC court decisions available for review.
Getting permission from copyright holders is required
Questions on commercial uses and further public distribution bring us full circle.
If you want to use someone else’s content, check the fine print to determine if content was uploaded under a Creative Commons license or if it was uploaded under the standard terms and conditions of the social media or other hosting platform. If it is the latter, beware!
While you may share a link with others as permitted in the community users’ terms and conditions, you may not make use of the actual content—images, text, footage etc.—without permission unless your use falls under fair use.
By way of example, Instagram’s user terms includes a statement indicating you may not use Instagram to violate any laws within your jurisdiction, including copyright laws.
Commercial use of content found on social media platforms—and really any place on the web—almost always requires permission. This is often the case even where the creator has chosen to share her or his work through a Creative Commons license. It doesn’t matter if the content has gone viral and has been posted by a million other people. What matters is whether the copyright owner has retained all of the exclusive rights or is sharing the content through a Creative Commons license.
If there is a license in place, it will be necessary to determine what is permitted under the specific license. Furthermore, you must determine if the use you have in mind meets the required terms and conditions. If there is no CC license or your use doesn’t meet the requirements, seek permission or risk infringement.
One last thing: Creative Commons licensing doesn’t prevent any use that would be permitted under fair use or other exceptions such as the TEACH Act. It is essential to determine if your use meets the requirements of these exceptions and if not, seek permission.
And of course, nothing in this article may be construed or used as legal advice. Please consult with an attorney if you have specific questions relating to copyright or any other legal issue.
To learn more about CC licensing, see https://creativecommons.org/faq/.