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Copyright Law and Social Media

As a social media manager, understanding copyright is a critical component of your content creation process. And it can definitely be confusing, especially if you have multiple accounts to manage in addition to all of the other aspects of your job.

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I’m including a section on copyright law in our updated book offering strategy, research, and best practices for social media managers, Fundamentals of Social Media Strategy. And, lucky you, I’m giving a sneak peek here. I’m hopeful this primer gives you the basic information you need to do your job while confidently knowing what is and isn’t appropriate under copyright law. As you become more experienced, you’ll run into stickier situations that you may need to consult with your campus legal department about. It’s a good idea to check in with them on a regular basis. I always make friends with my lawyers—they’re smart people and have helped me out too many times to count.

The Basics

Let’s get started. As you may or may not know, you don’t have permission to share content just because it appears on the internet, and you don’t automatically get to claim fair use because you’re an educational institution. The astute faculty of the now-defunct Technology and New Media Arts program at the University of Wisconsin-Stevens Point drilled this into my brain in 2003, my junior year. I was enrolled in Technology and New Media Arts 301, Survey of the Internet, Technology, and New Media Arts.

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This forward-thinking course covered, according to the course catalog, “World Wide Web understanding, appreciation, issues and content production. Technology trends including research, copyright, privacy, and censorship.” The copyright unit in the course focused largely on research from Harvard Law professor Lawrence Lessig, founder of Creative Commons (CC). Later that year, CC released the first version of its license suite, allowing creators to add simple protections to their work that also enabled other creators to legally share or create derivative works.

When teaching copyright to social media managers, I always start with CC.

Creative Commons

Creative Commons is a “nonprofit organization dedicated to building a globally-accessible public commons of knowledge and culture.” This five-minute 2011 video from Process Arts, while perhaps a bit dated, is a good overview that I continue to use in my social media strategy workshops. Once you watch it, you’ll recognize CC symbols in many places online, like under the date on a Flickr photo. 

CC makes it easier for creators to indicate how they want their work shared, but not everyone uses it. That doesn’t mean their work isn’t protected by copyright. In the U.S., “any original work of authorship, including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture” is automatically protected by copyright “the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device” (Copyright in General FAQ, U.S. Copyright Office). Works don’t need to be registered with the U.S. Copyright Office to be protected.

Fair Use Doesn’t Apply to all Campus Content

I’m not a lawyer, and nothing in this post should be construed as legal advice. I’m relying heavily on information provided by the U.S. Copyright Office, and you should, too—in cooperation with your institution’s legal counsel. U.S. copyright law is explained in title 17 of the United States Code. Copyright.gov has the code and a host of other resources to help you explore U.S. copyright, including an excellent overview of fair use

I’ve witnessed many accounts affiliated with a campus use copyrighted works in their content while claiming fair use. The use of copyright-protected works isn’t automatically protected by fair use if it’s posted on an educational institution’s account. The U.S. Copyright Office states, “courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts balance the purpose and character of the use against the other factors.” Fair use allows for certain types of uses (e.g., criticism, comments, news reporting, teaching, scholarship, and research). To be considered fair use, four factors must be considered. 

  1. Purpose and character of the use.
  2. Nature of the copyrighted work.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. Effect of the use upon the potential market for or value of the copyrighted work. 

For more information, read the U.S. Copyright Office’s More Information on Fair Use.

GIFs and Memes

Hopefully, it’s clear that you shouldn’t just take someone’s photo, drawing, or video from one platform and pass it off as yours on another. Sharing with permission, or appropriate citation, is different. Where this gets tricky is through evolving forms of expression like GIFs and memes, which are often based on copyrighted material.

It’s not a hypothetical that using this content could get you in trouble. In 2007, Laney Marie Granier took a picture of her son on the beach, grimacing with a look of pseudo-triumph on his face as he squeezed sand into his fist. He’s wearing a green and white shirt. You may already see this photo in your mind’s eye; her son became widely known as Success Kid. Nearly a decade later, a fireworks company put his image on one of their products. Laney sued them. The creators of Nyan Cat filed suit against Warner Bros. Using a meme in a way that endorses your product (even if that product is education) could get you in trouble.

Animated GIFs are a favored source of expression on the internet.

 

Some popular GIFs use scenes from copyrighted material like “The Simpsons,” “The Breakfast Club,” or “Game of Thrones.” While an individual user expressing themself with a GIF is unlikely to face any legal consequences, institutions may be a different story. The issue is further complicated by sites that provide easily searchable GIFs created from copyrighted material. While there is little to no case law on the use of GIFs, you should avoid any use that could be considered commercial. The most popular GIF library, GIPHY, states in its terms of use that any user uploading content to the site is considered the owner of that content, and “you're only allowed to use content that you find on the site in connection with your use of the Services and solely for personal and non-commercial purposes.” (Facebook acquired GIPHY in May 2020; we’ll see if there are any changes in their terms of use in the coming months.)

Many campuses have shied away from using common GIFs, instead creating their own. The University of Florida started uploading branded GIFs to Giphy in 2015. The Gators’ GIFs have amassed over two billion views. In 2018, the University of Central Arkansas created a branded GIF library. Now campus social media managers have access to GIFs of their president or mascot recreating popular memes (a great example of a derivative work). This approach has caught on, evidenced by Giphy libraries from the University of Central Arkansas, University of Nebraska-Lincoln, University of Glasgow, and CU Boulder.

Sources for Free and Legal Third-Party Content

Even if you can’t make your own GIFs, you can find third-party content that is legal to use. Here are some popular sources.

  • The Gender Spectrum Collection—Free, inclusive stock photos “featuring images of trans and non-binary models that go beyond the cliches.” Provided by Vice, this library provides collections related to lifestyle, relationships, technology, work, school, health, and moods. The CC license applied to these photos does not allow for derivative works or commercial use.
  • Flickr Search—On Flickr’s search page, there’s an option to change it from “any license” to one of the following: all creative commons, commercial use allowed, modifications allowed, commercial use & mods allowed, no known copyright restrictions, or U.S. Government works. By choosing the licenses you and your legal counsel are comfortable with, you may find some beautiful photos to legally use in your content. I regularly use this option to find photography for presentations (which often require attribution).
  • Canva—The free images in Canva’s library can be used for works created within Canva or other platforms. Their license allows for commercial use with no attribution required and allows for modification, although there are restrictions regarding how images with identifiable people are used.
  • CC Search and CC Collections—Creative Commons makes it easy to search or browse licensed content on its website.
  • YouTube—Search for content, then open the search filters above the results and choose “Creative Commons” from the Features menu. This displays all content that uses the Creative Commons Attribution License. You can confirm the license for YouTube content by clicking “See More” in the video description and scrolling to the bottom. The license is listed just below the category. If no license is listed, assume there is none.
  • Pexels—This site license allows for commercial use with no attribution required and allows for modification. Although creators can delete their content from the site at any time, if you’ve already downloaded a photo you can continue using it for free; the Pexel license can’t be revoked.

Copyright applies to most aspects of social media work. As more events are conducted online, the limits of copyright for theatrical and musical works are being tested, along with those mentioned here. Take time each year to review Copyright.gov, and start a dialogue about copyright with your campus legal counsel. Keeping copyright law top of mind can help you—and your institution—avoid unnecessary and damaging legal action.   

Watch for the updated version of my book later this year. If you’d like to get on the list to be one of the first to receive it, sign up here!

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Subscribe to the NewsletterThis post originally appeared on Campus Sonar's Brain Waves blog.

Liz Gross

Liz Gross is the founder and CEO of Campus Sonar. A recognized expert, data-driven marketer, and higher education researcher, Liz specializes in creating entrepreneurial social media strategies in higher education. She is an award-winning speaker, author, and strategist who was named a 2018 Mover and Shaker by Social Shake-Up Show and a finalist on GreenBook’s 2019 GRIT Future List. Liz has more than 15 years’ experience in higher ed and strategic social listening programs. She received a Ph.D. in Leadership for the Advancement of Learning and Service in Higher Education at Cardinal Stritch University, a master’s degree in educational policy and leadership from Marquette University, and a bachelor’s degree in interpersonal communication from the University of Wisconsin-Stevens Point.

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