Arts Law Information Sheet

Social Media for Artists

The Internet provides artists with a platform to access a worldwide audience for their work.  Social media, in particular, is a ready-made do-it-yourself mechanism for distributing, promoting, exhibiting and even selling creative content whether music, visual art, film, literature or other multi-platform art forms. This information sheet addresses the legal issues that can arise for artists using social media to publish their work.

In this information sheet:

  1. Introduction
  2. Your copyright
  3. Granting a copyright licence
  4. Terms and Conditions jargon
  5. User Responsibilities
  6. Copyright infringement (consequences that can occur and remedies)
  7. Other Legal Consequences
  8. Changes in Terms and Conditions
  9. Other issues
  10. A closer look at terms and conditions of social media sites
  11. Top Tips To Remember
  12. Further Information

Introduction 

The Internet provides artists with a platform to access a worldwide audience for their work. Social media, in particular, is a ready-made do-it-yourself mechanism for distributing, promoting, exhibiting and even selling creative content whether music, visual art, film, literature or other multi-platform art forms. However, the seemingly “free” and “user-friendly” services offered by social media sites are not offered on a no-strings-attached basis, but in fact function within a carefully created legal framework that binds users of their sites to certain conditions. It is vital that users understand those conditions – especially when uploading creative content. 

TILL DEATH US DO PART…

When you accept a social media website’s terms and conditions, you are saying that you have read and understood the details and are choosing to enter into a legally binding relationship with the website owners - just like marriage. Therefore, it’s important that you take the time to carefully understand your legal rights and responsibilities! 

When you set up an account on a social media site, you are asked to accept their terms and conditions before creating your account (this is similar to user agreements when installing software). Many people can’t be bothered with the fine print and skip or scroll through all the terms and conditions and just check the “I ACCEPT” button. By doing so they are actually entering into a binding legal contract without knowing any of the details. Would you do that if it were entering into recording contract, a film distribution deal or book publication agreement?

Social media sites offer real benefits for artists and creators, but they also can have a significant impact on legal rights and responsibilities. When an artist uploads creative content to a social media site, it not only increases that artist’s exposure, builds market recognition and their fan base but it also may dilute the artist’s ownership rights (depending what the terms and conditions say), and make that content more vulnerable to unauthorized appropriation and misuse. It’s important to understand those risks before you click on the “I ACCEPT” button.

This information sheet will briefly examine the terms and conditions of various social media sites commonly used by artists and creators including Facebook, Flickr, Google+, Instagram, LinkedIn, Pinterest, TripAdvisor, Twitter, Vimeo, WordPress and YouTube. It is assumed that any content uploaded by the account holder to the social media site is content created by the account holder in which he or she owns the copyright.

Your copyright 

The Australian Copyright Act 1968 (Copyright Act) protects certain forms of creative expression including artistic works (paintings, drawings, sculptures, works of artistic craftsmanship), musical works (songs), dramatic works (plays, choreographic works, screenplays), literary works (novels, articles, textbooks, non-fiction, poetry, song lyrics), audiovisual works (films, animations, videos), sound recordings and published editions.

Generally, the artist or creator owns the copyright in a work. Copyright is a bundle of economic and legal rights to use the work in certain ways, including by reproducing or copying it, communicating it to the public, publishing it and even adapting it into new forms. These rights are exclusive to the owner of copyright and so third parties (including social media sites) cannot use copyright material in the abovementioned ways without the copyright owner’s permission.

For more information see Arts Law’s information sheet - Copyright.

A social media site needs the copyright owner’s permission to put copyright material online. That permission is obtained by getting the copyright owner’s consent when he or she sets up an account on the social media site. The terms and conditions may require the user to assign or give up ownership of their copyright to the site, or ask the user to grant the site a licence to use the works for certain purposes and a certain period. If the terms require you to assign your copyright in any content you upload, you transfer all your rights to the site which then owns the copyright and can exercise all rights deriving from copyright ownership. By asking you to license your copyright, you allow the website to exercise some or all of your exclusive rights as the copyright owner whilst still retaining copyright ownership. This may severely impact your own ability to use your creative content in other ways and to earn income from exploiting it.

Granting a copyright licence 

Fortunately, the terms and conditions of all the social media sites examined in this information sheet state that ownership of copyright in uploaded content remains with the owner of the uploaded content. In other words, there is no assignment or transfer of the exclusive rights of the copyright owner to the social media site. This is a good thing, as the artist is not required to give away his or her inherent rights as creator in order to access the benefits of the social media site. However, all the sites listed require the artist to grant them a licence when accepting their terms and conditions. This licence sets out the scope of the social media site’s permission to use the work you choose to upload (content) when using their service.

In order to upload content (images, text, film, audio etc.) to any social media site, you will need to grant a licence of your copyright. This is because making your content accessible online is a form of reproducing and communicating your content – without your permission this would amount to a potential breach of copyright in any content protected under the Copyright Act.

THINK OF COPYRIGHT LIKE A FISH POND

Imagine you own a fish pond. As the owner of the pond, you have the exclusive right to control who can fish there. No one else can fish in your pond without your permission. If you give or sell the fish pond to someone else, you assign ownership of the pond to them and they then have the exclusive rights of control over who can fish there – including you. If you assign the copyright in your work to someone else, you give up all rights of control over that copyright.

Alternatively, you can grant other fishermen a licence to fish in your pond on certain terms – such as when they can fish there, how many fish they can catch and what they must pay you for that licence. You continue to own the pond but you allow others to use it on certain terms. If you grant a copyright licence, you continue to own copyright but allow others to exercise some or all of your rights on terms which you agree with them.  

The most common types of copyright licences are:

Exclusive: The copyright owner authorizes another party to exclusively exercise some or all of his/her rights of copyright. Once an exclusive licence of copyright is granted, not even the copyright owner can exercise those rights for the duration of the licence.

Non-exclusive: The copyright owner authorizes another party to exercise some of his/her rights of copyright; however the copyright owner can also exercise those rights and can authorize other third parties to do so as well.

The licence in your content that you grant to the social media site will allow other people to use your content in ways that are consistent with that site’s Terms of Service (TOS) or Terms of Use (TOU). When your content is ‘reposted’, ‘re-pinned’, ‘re-tweeted’ it may end up being used in different contexts, including a commercial context, but that use could be still be consistent with the TOS/TOU of the social media site. As well, the TOS/TOU could state that the social media site has the right to sublicense to other companies and individuals who have some commercial licensing arrangement with the social media site (e.g. a ‘partnering’ arrangement). However a U.S. court held that there was an infringement of copyright in photographs when a photo agency took images from photographer’s Twitter feed and distributed the images for commercial publication through the photo agency’s licensing arrangements: See the article by Robyn Ayres & Ruthanna Klawansky ‘Photographers’ rights to their photos posted on Twitter and twitpics’.

For more information see Arts Law’s information sheet – Copyright.

Terms and Conditions jargon 

Terms that are commonly used in social media website terms and conditions include:

Agreement: A legal arrangement or understanding between two or more parties which they are each legally obligated to carry out.

Adaptations or derivative works: One of the exclusive rights of the copyright owner is to make adaptations or derivative works from the copyright material. An adaptation or derivative work is a new version of a literary, dramatic or musical work which may have its own separate copyright. Examples of an adaptation are a play or screenplay for a film (dramatic work) derived from a novel (literary work); a translation of a dramatic or literary work: a new arrangement of a musical work: or an animation of visual artworks. Some website terms and conditions require the account holder to grant unlimited rights to third parties to make adaptations or derivative works from uploaded content without consulting or acknowledging the original creator.

Governing law: This is the state or country whose laws will be used to interpret the agreement. The governing law clause is usually coupled with a jurisdiction clause stating where any court proceedings must be commenced if there is a dispute. This is particularly relevant when the account holder lives in a different country to the one where the website is hosted. The following is an example of a Governing law clause: 

"This agreement is governed by the law in force in the state of California.

Irrevocable: When a term states that the granting of a licence is ‘irrevocable,’ this means that it cannot be undone or withdrawn.

Perpetual: If this term is used to describe how long a licence of copyright lasts, it means that the licence continues until copyright expires.

Royalty-free: A royalty free licence is one which gives rights of use over the uploaded content to the licensee (the website operator or other website users) without any obligation to make a payment to the owner of the uploaded content.

Sublicensable/Transferable: A licence that is fully sublicensable or transferable allows the website to pass on the rights it receives to any third party without further consultation.

Use: This general term is often used to cover the broadest possible grant of rights over uploaded copyright material. A right to ‘use’ may mean a right to exercise all of the rights of the copyright owner including the right to reproduce the material for any purpose and make adaptations of the material.

Worldwide: A worldwide licence grants the licensee (the webiste) the ability to exercise the rights described in the terms and conditions in any country throughout the world.

For more information see Arts Law’s information sheet – Contracts: a glossary of jargon

User Responsibilities 

Nearly every social media site requires you to give a legal warranty that you have the right to the content you upload and that your behaviour on that site will not breach any laws, for example, will not infringe another person’s copyright or constitute defamation.

What You Do Online Has Legal Consequences…

Leah Madden, the owner of an Australian swimwear business called White Sands saw swimwear designs featured in a Seafolly catalogue she thought appropriated her own original designs. Madden posted several extracts from the Seafolly catalogue on her Facebook page with comments including “Seriously, almost an entire line-line rip-off of my Shipwrecked collection.” Her followers reacted promptly with comments including “Nasty! Shame on ‘em! Won’t be buying Seafolly.” This led to stories in the trade press.

Seafolly sought a take-down request on Facebook and sued Madden for breaches of the Australian Consumer Law, injurious falsehood and copyright infringement (for reproducing their catalogue images without permission on her Facebook page). Seafolly relied on the comments of Madden’s followers on Facebook to prove that their reputation had been damaged. The Court found that the designs were not if fact copied and held Madden liable for misleading and deceptive conduct in breach of the Australian Consumer Law. Madden was ordered to pay Seafolly $25,000 in damages plus costs.

A warranty is a form of strict legal guarantee – it does not matter that you genuinely believed otherwise or took all reasonable steps or were deceived by someone else – if you give a warranty you are likely to be found liable to compensate the website operator if that warranty is breached. The terms of Instagram state “by accessing or using the service you represent and warrant that your activities are lawful in every jurisdiction where you access or use the service.” It is no excuse that you do not know that the laws in a country where you are on vacation prohibit photographs of certain public buildings… If Instagram is fined or prosecuted because your photo appears on its site, you may be contractually obliged to pay for any loss it incurs as a consequence.

By agreeing to terms and conditions, you are contractually bound by them. In most cases, you agree that the website operator can terminate your account if it finds you in breach. This could lead to instant loss of your content. It is therefore sensible NOT to use a social media site as a de facto back up or archive of content.

Spam: Many sites ban users from posting ‘unauthorised commercial communications and posts or comments that are repetitive and irrelevant in nature’.

Offensive behaviour: Most sites prohibit users from posting content that incites hatred of a particular group, is threatening, pornographic, violent or contains nudity. However, Twitter states in its User Agreement that due to the conversational nature of their service, users are to expect that they will view material that may offend. Vimeo specifically permits non-sexual nudity in user-generated content.

Conduct of other business: Several sites prohibit users developing or operating any third-party application containing alcohol-related, dating or other mature content (including advertisements) without appropriate age-based restrictions. Google+ allows discussion but no promotion of such services. Facebook and LinkedIn both explicitly disallow content containing commercial activities and/or sales such as contests, sweepstakes, barter, advertising, and pyramid schemes without their prior written consent. Vimeo states that users are not to advertise or solicit others to purchase any product or service within the Vimeo Site unless affiliated and with written agreement. Artists need to take care if using social media to sell music or other services that such commercial conduct is permitted by the terms and conditions.

Illegal activities: Most sites state that users are not to use the site to do anything unlawful, fraudulent, malicious or discriminatory.

Copyright infringement (consequences that can occur and remedies) 

Every social media site discussed in this information sheet has a procedure to deal with any content which is posted by a user in breach of copyright. On the one hand, that means you do have a process to follow if your own content appears on a social media site without your permission. On the other hand, if you post content (or your followers or fans post content on your page or account) which infringes copyright, the site may take appropriate action. This can include removal of content, or suspension or termination of accounts.

The copyright infringement policies of the social media sites discussed in this information sheet ’ can be found below:

Sites

Copyright Infringement Process

Facebook

General Help Centre at:

http://www.facebook.com/legal/copyright.php?howto_report

Flickr

Provides specific instructions to report infringement in Clause 26 of Terms of Services at: http://au.docs.yahoo.com/info/terms/

Form at: http://help.yahoo.com/l/au/yahoo7/copyright/general.html

Google+

General Help Center at: http://support.google.com/bin/static.py?hl=en&ts=1114905&page=ts.cs

Instagram

General Help Center at:

http://help.instagram.com/535503073130320/

LinkedIn

Copyright infringement reporting policy:

http://www.LinkedIn.com/legal/copyright-policy

Pinterest

Copyright infringement reporting policy:

 http://about.pinterest.com/copyright/

TripAdvisor

Notice and Takedown procedure at: http://www.tripadvisor.com.au/pages/noticetakedown.html

Twitter

Copyright infringement reporting policy:

 Clause 9 Copyright Policy at https://twitter.com/tos/

Vimeo

Copyright infringement reporting policy:

 http://vimeo.com/dmca

WordPress

Digital Millennium Copyright Act Policy at http://automattic.com/dmca/

YouTube

Copyright Infringement Resources: http://www.youtube.com/yt/copyright/copyright-complaint.html

 

Other Legal Consequences 

It is also important to be aware that there may be other legal consequences in relation to what you do and what you post online that go beyond the scope of complying with the site terms and conditions. The laws of defamation, passing off, misleading and deceptive conduct and injurious falsehood may also be relevant when you are voicing your opinions or making comments online.

For more information see Arts Law’s information sheets – Defamation law (for material published after January 2006) and Legal Issues for bloggers;

Changes in Terms and Conditions 

The terms and conditions of every site contemplate that those terms can be changed by the site operator and those changes will apply to every user, whether they realize those changes have occurred or not. Generally, continuing to use the service after new terms and conditions are published online means you agree and accept those changes. Some sites seek feedback before making changes to their policies (Facebook), others simply post a notice that changes are being made (Google+, Instagram and LinkedIn) while some have no obligation to provide notice and can simply change their terms without warning at any time (Pinterest, TripAdvisor, Twitter, WordPress and YouTube). In that situation, it is the responsibility of the user to check the terms and conditions periodically for changes and continued use of the site is deemed to be acceptance of any changes.

Other issues 

Adaptations or Derivative works based on your copyrighted work 

Depending on each social media website, the terms and conditions may allow users to create adaptations or derivative works based on content uploaded by other users. It is important that those uploading original creative content understand whether or not so doing involves giving permission to third parties to engage in adaptive and transformative use of that content or the creation of derivative works without acknowledging or seeking the express permission of the copyright owner.

One way of managing such third party use is through the Creative Commons licensing system – however this system is built on the fundamental premise that the content owner intends to share content in some form. For further information on the Creative Commons system, see Arts Law’s information sheet – Creative Commons.

Importantly, even if the site doesn’t expressly permit adaptive or transformative use, the posting of content on any online social media site does, as a practical matter, exponentially increase the opportunity for third parties to access and appropriate your content (with or without your permission). Given the nature of the worldwide web, it can be almost impossible as a practical matter to pursue such infringements. The exposure and global reach and other benefits of social media may make this risk one worth taking but it is important to understand that risk and approach it with eyes wide open!

Taking your content offline 

Many of the social media sites discussed above state that the licences you grant to them will end when your account is terminated and your content removed. In reality, this does not mean that the content you have previously uploaded will stop being available on the internet and may mean that even terminating your account does not terminate the licences you have granted.

Due to the nature of the internet and social media sites, it is almost inevitable that at least some if not most of the content you have uploaded will have been used, shared (reposted, ‘re-pinned’, ‘re-tweeted’) or downloaded by others during its availability. The moment you upload content, you share it with at least your friends and often also their friends, if not the general public. Particularly if the site is intended to promote a creative practice and build a fanbase, it is likely that content will be posted with minimum privacy settings (in order to reach as many people as possible) and thus be made as widely available as possible.

If the general public (or your friends) can save, share and use your uploaded content, then terminating your account is likely to be ineffective as a way of removing your content from the internet. In effect, this means removal of your content after termination of your account is simply not possible, and you therefore cannot terminate the licences that you previously granted to the website operator and other third party users over your content.

Furthermore, social media sites usually have no control over content indexed by search engines such as Google and Bing. Therefore, you should be very careful in choosing the content you upload – assume it is likely to be available online in some form or another indefinitely.

A closer look at terms and conditions of social media sites 

For a more detailed breakdown of the terms and conditions of commonly used social media sites you can download the full information sheet.

Top Tips To Remember 

  • Think carefully about the social media site you choose to showcase your content.
  • Read the terms and conditions carefully.
  • Don’t post any content in respect of which you might want to claim some sort of exclusivity.
  • Don’t use the site as a de facto back-up library.
  • Don’t post content which isn’t yours unless you are confident that the owner has given you permission to do so – maybe by posting it first on the site you use or through a Creative Commons licence.
  • Remember that social media is all about social dialogue and communication and engagement but it can carry with it real legal consequences and penalties.

Further Information 

The Australian Copyright Council (ACC) has free information sheets on their website:

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet. 

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

© Arts Law Centre of Australia

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The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

Australian Government - Australia Council for the Arts