GUEST POST: NEHAN SETHI AND MISHAAL NATHANI – WHAT’S MINE IS NOT YOURS: DECODING INTELLECTUAL PROPERTY IN THE SOCIAL MEDIA

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ABOUT THE AUTHORS:

Nehan Sethi is lawyer and the Founder of ‘Her Forum’ – a platform and community for women in law. Nehan currently works at Crawford Bayley & Co. and has a strong interest in Intellectual Property laws.

Mishaal  Nathani  is a lawyer by profession and an entrepreneur by nature. He currently works in the CEO’s Office at Dr. Vaidya’s, a new age Ayurveda company. In addition, he is the Co-Founder of Plane Crazy, a full-service creative consulting agency.  Mishaal graduated with a B.A. LL.B from Jindal Global Law School. He has been admitted to Harvard Business School for the MBA program as part of the 2+2 deferred enrolment.

Intellectual Property law (“IP law”) has proved to be a complex but extremely important sector of the law in the past few years – especially with the advent of social media. The WIPO defines IP as the “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” (1) IP is usually protected globally via instruments such as copyright, trademarks, and patents. IP law aims to provide protection to the original creator of the work while ensuring that creativity and innovation are not unfairly hampered.

Nowadays, we are used to uploading all our content on the internet. Be it music, videos, images, articles – there are countless social media platforms with sky-high valuations that have been specifically designed for the content you create. For instance, there’s Instagram for your photos, Soundcloud/Audius for your music, Medium/LinkedIn for your musings and articles, and so on. Through this article, we aim to explain the various IP laws and rights that are associated with uploading your original content onto these platforms. Hopefully, by the end of the article, you will know the best ways to protect your content on social media – both in terms of safeguarding your own work, as well as by ensuring that you don’t get into trouble by using someone else’s work.

The “First Owner” of Original Work

Section 17 of the Indian Copyright Act, 1957, deals with the concept of “first owner.” (2) According to Section 17(a) of the Indian Copyright Act, the “first owners” of a literary work are the authors of that particular work. As per Section 13, the Copyright Act protects a closed list of different kinds of works. Thus, you automatically get copyright protection as soon as you create original literary, dramatic, musical and artistic work, including illustration and photography, as well as original non-literary written work.

First ownership will always rest with the author even if the rights of the concerned literary work have been transferred. Thus, by virtue of this section, unless there is an agreement to the contrary, a copyright to a photograph generally belongs to the creator. An example of an agreement to the contrary is seen if the work was created in the course of employment. If you’ve created the piece for the purpose of work, the first owner of the copyright will be your employer.

Social Media

Naturally, there’s still a fair amount of ambiguity around this subject and a lot of questions do arise. Can I repost a picture on Instagram? Can I retweet? Is it okay to post a cover of another artist’s song on YouTube? Can I use a song on my video?

In most cases, your original content will be protected from unauthorized usage by other users on social media platforms. However, this does not cover usage by the platform itself. What most people do not realise is that when you create an account on a social media platform like Instagram, Facebook or Twitter, you’re immediately asked to accept their terms and conditions. Naturally, most users blindly accept these without actually reading them. By accepting these you’re usually granting a transferable, royalty-free, worldwide licence to the platform to use any content that you share.

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For instance, Facebook’s Statement of Rights and Responsibilities states that “[y]ou are free to share your content with anyone else, wherever you want.” However, it also states that whenever you share, post or upload content on Facebook, you give to Facebook “a non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content.” This is applicable for content that is posted on Instagram as well. (3) So while you remain the “first owner” and retain all your copyright protections, you also grant Facebook a license to use your work.

 

In the next few sections, we will attempt to address some of these issues along with throwing light on some of the underlying laws that apply – both from the perspective of different kinds of works as well as different social media platforms.

  1. Sentences and Phrases – Twitter 

In 2017, singer Frank Ocean was seen wearing a t-shirt that said: “Why be racist, sexist, homophobic or transphobic when you could just be quiet?” The t-shirt was made by the company Green Box Shop – a company run by an 18-year-old, Kayla Robinson. However, it soon came to light that the quote had been reportedly copied from a tweet by someone else named Brandon Male in 2015. Sales for the t-shirt drastically increased after Frank Ocean was seen wearing it and lots of questions were raised around the copyright of the phrase. While the issue was eventually settled outside of court, it shed a lot of light and attention on the IP laws surrounding social media platforms. (4)

 

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This leads to the question: are your tweets protected by copyright?

In order for a tweet to be protected by copyright, there are a few criteria that must be met:

  1. It must be original to its author
  2. It must not be a fact – facts are not protected. It should have some amount of creativity/original thought.
  3. It should be more than just a word or a short phrase as these are usually not protected by IP copyright.

If these criteria are met, you own the copyright to anything you tweet. The Twitter Terms of Service clearly says that “you retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours – you own your Content (and your photos and videos are part of the Content.)” However, as covered above, Twitter retains a license to use this content as well – as well as to allow other users to retweet it. Twitter is allowed “to make your content available to the rest of the world and to let others do the same.”

Next time you want to use something you see on Twitter – keep this in mind!

 

  1. Images – Facebook and Instagram

Images are the most common example of copyright infringement – be it Instagram, Facebook or even just reusing images on the internet without giving credit, most of us tend to be guilty of it. A common misconception is that if you edit the image, it is no longer protected by copyright. In most cases, this is not true. The copyright will still vest in the original first owner of the work.

One of the first cases that addressed the issue of the use of images uploaded by individuals on social media was that between a photographer and the Agence France-Presse and Getty Images. The Haitian photographer Daniel Morel took photos of the 2010 earthquake and shared them on TwitPic, a website that allowed photographers to post pictures on Twitter. These pictures were then reposted by another twitter user and the pictures were then distributed by The Agence France-Presse and Getty Images. The jury found that Agence France-Presse and Getty Images willfully violated the Copyright Act and awarded the photographer $1.22 million. The court made a significant observation that a photographer does not wilfully forfeit his rights by posting a picture on social media. Moreover, notwithstanding a website’s terms of use, an agency before using/distributing that photograph must seek the permission of the photographer. (5)

In the 2018 case of Fairmount Hotels Pvt. Ltd. vs. Bhupender Singh, the High Court of Delhi also recognised that photos uploaded by users on Facebook are protected under copyright law. (CS(COMM) 111 of 2018) In this case the Plaintiff, Fairmount Hotels Pvt. Ltd. realized that the Defendant had displayed pictures belonging to the Plaintiff, of their hotel, on Facebook. The Plaintiff submitted that such an act was done to mislead innocent customers since the Defendant was an ex-employee of the Plaintiff and was now running his own hotel. The court granted a permanent injunction against the misuse of the photographs by the Defendant and issued a direction of Rs. 50,000 to be paid to the Plaintiff. This case helped further establish that the meaning of “photographs” u/s 2(c) of the Copyright Act includes photographs posted on online platforms as well.

3. Music and Videos – YouTube and TikTok

Copyright law with regard to music can be a complicated subject and there are several misconceptions that exist around it. First, it is important to understand that even if you are not making any money from a video or are simply just uploading a video as a fan, you are not authorized to upload such a video on YouTube without obtaining explicit permission or a license from the copyright holder. Often people are under the impression that uploading a cover of a song on YouTube is perfectly alright as long as one gives the due credits to the right holder. This is not true and in fact in some cases even if you’re the original composer of the song you may not have the rights to upload a cover of it. This situation arises because there are two (or more) rights owners to a given piece of recorded music –

  1. Rights to the written song which includes the composer, lyricist, and/or music publisher and the
  2. Rights to the sound recording which is with the record label and performer/s.

Thus in a case that the original composer of a song has waived his/her rights to the record label, even they do not have the right to upload this song online. It is therefore important to take explicit permission from a right holder before using their music to avoid getting in trouble. This could include getting asked to take your video down, a copyright strike, having the audio in your video muted or getting sued. (6)

When it comes to usage of music clippings in stories on Instagram and Facebook, one does not have to worry about these aspects. Instagram launched Instagram music in the US in 2018 and this was subsequently made available in India in 2019 as well which takes the form of Music stickers on Stories. Users of Instagram are not required to acquire any rights before sharing such content because it comes under the purview of user-generated content (USC) and is covered by blanket licenses. Facebook’s licensing deals, including Universal Music, Sony and Warner Music which allow users to begin sharing and exchanging music legally across the tech giants media platforms.

This also applies in the context of TikTok and all music that is available on the platform can be used and shared without having to seek permission. If you are a TikTok user, you should never be subject to a DMCA Takedown request or any legal action since the royalties are paid and the music is licensed by them. (7) However, there are still several instances which could lead you to receive copyright infringement notices from TikTok and if you upload too many copyrighted works then your account could even be shut down. Thus it is important to be careful of the following instances:

  1. If you upload a copyrighted song not offered by the platform
  2. Images, artwork or films which you include in your TikTok video without permission
  3. For any TikTok video made for commercial purpose or brand promotions, you must get the permission of anybody who is identifiable in the video

Conclusion

The key takeaway is that the online use and sharing of work on social media is not copyright free. As an average user, it is important to be aware if you need a license before sharing someone else’s work and it is important to give credit where it is due. If you’re a creator of content and find out that your content is being shared without your permission, social media platforms do have online tools which allow you to have the material removed.