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The internet provides amazing places to create and share art, music, video, articles, and other forms of entertainment. But what happens when creative content gets used in one form and then proceeds to get plastered across the world wide web?
In this article we explore various social media companies’ terms of service and how the sharing of copyrighted material may be permitted over the objection of the materials’ owner.
Using any social media or other online service requires acceptance of the site’s terms of service. This fine print is often overlooked (if not actively avoided!), with new users blindly clicking “Accept” to get through to content or services and service providers quietly updating the terms from time to time.
Accepting these terms requires users to agree to the companies’ policies and community guidelines, but users are often generally free to post third-party content with enforcement of any rights falling to the rights holder, not the social media or online service company. The terms of service frequently provide for the online service to have license to use/display the user’s content, including potentially granting additional rights to other users or other services. This is where things can get a bit murky.
For example, let’s say an independent artist licenses their work to a third-party that distributes the material online, with the work ultimately being reposted on social media. What action can the artist take against the user that reposted the work?
In this scenario, it is possible for the actions of the licensee to negate the artist’s copyright claim because of the social media website’s Terms of Service, even though the licensee and the user who reposted the work on social media have no relationship.
Here is an example. Previously, Twitter used a feature called a “Twitter Card” that would essentially autofill certain details if a user’s post included a URL. (This was the pre-Musk service we will call “Twitter” to differentiate from the current workings of “X” which differ somewhat.)
The Twitter Card would pull in information such as a title, description, and/or picture that helped summarize the referenced webpage and display this in the user’s feed. So, a user could copy and paste the URL and the resulting social media post would include ample details relating to the webpage, including copyrighted text or imagery.
To promote their content, some third-party creators, such as news organizations with ownership or license to extensive copyrighted content, included directions embedded in their webpages directing what information would be displayed in the Twitter Card. These instructions are hidden as metadata within the webpage’s HTML, but the content/images of the linked webpage are not directly posted by the third-party content creator/licensee.
With these instructions in place, the user that links to the URL has no control over the actual content shown in their post, regardless of whether that content is copyrighted or not. But this raises an interesting question: have the licensee’s webpage instructions subjected the content to the social media company’s terms of service and, if so, so what? The law in this area is not clear and much will depend on the details of the terms of service.
There is an argument that the licensee intentionally targeted what content would be uploaded via the Twitter Card by encoding the webpage with specific instructions, which allow for specific text or images to be chosen. As noted above, the licensee is itself also a user of the online service and would have agreed to the terms of service, granting rights to the service provider and potentially other users to re-use and display content provided to the service.
On the other hand, one could argue that the third-party never specifically posted the content. Note that in all of this, the original artist/author does not need to be a participant in the social media posts or a party to the terms of service.
Assuming the terms of service do apply, the next question is what do they allow. For example, Facebook’s terms of service grant non-exclusive, sublicensable rights to Facebook to use and display your content, with the example that Facebook might “share it with others,” whatever that means.
In the case of Twitter/X, the (current) Terms of Service include: “This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for us… to make Content submitted to or through the Services available to other companies, organizations or individuals… for the syndication, broadcast, distribution, repost, promotion or publication of such Content on other media and services….” YouTube explicitly grants rights to “each other user” to reproduce works but only “as enabled by a feature of the Service.”
Clearly Facebook and Twitter have the ability to sublicense their (expansive) display rights to others, but are such sublicenses in fact granted and existing? What steps would be taken to formally recognize the rights of other users to reuse/repost content under these grants?
While it is tempting to assume that a social media platform requires this widespread license for other users to engage with the content, there is something unsettling about the end result where a social media post effectively enters the public domain due to the expansive license granted. This is particularly so in the fact pattern outlined above where the licensee is not actively posting the content on social media but instead pointing back to its own webpage.
Courts have not definitively answered these questions on either the applicability or extent of these terms of service to protect reuse by other users. Most decisions addressing similar arguments are in the context of denying motions to dismiss copyright infringement claims, leaving the issues to be addressed in further proceedings.
Hopefully you are not establishing precedent in this area, but it is always good to remember to look at what is going on behind the scenes when dealing with copyrighted content and social media. There are many hidden details in a social media site’s terms of service and how rights holders interact with the online service that can influence an infringement dispute.•
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Blake Hartz is a partner and Shane Moreillon is an intellectual property attorney at Woodard, Emerhardt, Henry, Reeves & Wagner LLP.
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