By Richard Liebowitz, Esq.

The digital age has ushered in an explosion in creative collaboration, not the least of which is made possible by various social media platforms. For creators and consumers alike, the ability to share, engage, and experiment with this elastic, new medium has created as many opportunities as challenges.

Among the challenges facing the professional creative community is the notion that all rights are suspended once social media cannibalizes content. It is a widely held, yet mistaken, belief that copyright law does not reach popular platforms such as Instagram, Twitter, Facebook and the like.

The misconception stems from the belief that participating in these online platforms is akin to signing away one’s rights. Additionally, many view the voracity with which social media platforms have conquered the public sphere as tantamount to the days of the wild west, where law’s grinding slowness permits users to do whatever they want with little or no consequence. The worst part about these mistaken beliefs is not that they are wrong, but that they discourage creators from fully taking advantage of these innovations in how we communicate. It is our intention to change that impulse to revert, to conserve, to abstain and withdraw—both in our clients and in the creative community at large.

First, let’s be clear: the Copyright Act extends to social media platforms. In fact, it rewards and encourages the same kind of sentiment—to share, to create, and to engage. While being vigilant is always wise, hoarding your work, whether in your desk drawer or on your laptop, has never been encouraged by U.S. Copyright Laws. The laws aim to foster an environment where creators readily share work because they feel confident that it will be protected and that infringers will be adequately punished.

Second, don’t be naïve. While this may seem at odds with advice heretofore, it bears repeating: No one will care about protecting your work if you don’t. Register your work with the Copyright Office. If you have posted your work on social media, then it is considered published for the purposes of the Copyright Act. It follows that if you have published your work, then you should register it as such. This matters because the laws encourage putting one’s talent and skill into the marketplace and reward those who have bestowed their gifts onto the world. Be a generous creator and register your works as published!

Third, you are in control. Many of these social media platforms feature privacy settings which are underutilized. If you only want certain people to see your photography, then set your privacy settings accordingly. If you don’t want people to crop, alter, repost or do anything to your images, let your privacy settings reflect those preferences. Think of privacy settings as crafting your own contract with the social media platform to specify the terms of use.

Fourth, don’t assume anything. Social media has allowed many to turn interests and hobbies into promotional empires. Just because it seems like an innocent, if silly, post, doesn’t mean it is not commercial in nature. As companies utilize social media more to market their wares via endorsements, the division between a private individual user and corporate interests becomes blurred.  For example, we recently challenged a global fashion brand’s unauthorized use of our client’s photography on its Instagram page.  This social media use was intended to promote and market the brand at the expense of our client’s right.

These two screen shots from Instagram show the similarities in the images, and how Tibi LLC (fashion company) cropped the original. The picture with the woman in it is the legitimate one. The cropped image, without the woman, is from Tibi LLC’s Instagram. CREDIT: Matilde Gattoni Tandem Reportages.

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Fifth, that also applies to you. The most resistance we get is from members of the creative community who refuse to admit that they also have business interests, or that their work is a commercial endeavor. Beyond registering, add a watermark to your photographs. It is another technological measure to encourage proper licensing. It deters infringement and provides for additional remedies from those undeterred by said measures.

Finally, feel free to engage with the world. The laws are neither too slow nor antiquated to protect your rights as a creator. From the Statute of Anne through its many incarnations, copyright law persists. Through the advent of new technology and social and political evolution, copyright law supports those who unabashedly strive to create, to offer new aesthetics, and to push our horizons. And for those who would undercut our values in copyright—there are always damages.

Richard P. Liebowitz, Esq., is a New York attorney who focuses on intellectual property law, related to copyrights and trademarks, at Liebowitz Law Firm, PLLC. He is a 15-year member of the New York Press Photographers Association (NYPPA) and has produced award-winning photojournalism. A graduate of the University of Pennsylvania and Hofstra Law School, Richard now helps his fellow artists around the globe resolve their intellectual property infringements and protect their work, on a contingency basis. As a fellow photographer, he understands the challenges faced in today’s hi-tech environment and is passionate about helping the creative community. Please feel free to call Richard today at 516-233-1660 for a free legal consultation!

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