Social media is not just a marketing tool; often, it is the face of your brand and a key way of communicating with customers and potential customers. However, along with the creative freedom it offers, social media also comes with legal responsibilities, especially when it comes to intellectual property (“IP”). Whether you’re managing posts in-house or outsourcing to a marketing agency, understanding social media-related IP risks and responsibilities is essential to protecting your company and avoiding costly missteps.
Here are six critical IP rules every business should follow when navigating social media:
1. Just Because It’s Online Doesn’t Mean It’s Free to Use.
One of the most common IP mistakes that companies make is reposting or repurposing content they find online—memes, GIFs, photos, music clips—without ensuring that they have the right to use it. Almost all creative content, including images, videos, music, and artwork, is automatically protected by copyright the moment it’s created – no registration required. That means you can’t use it commercially without permission, even if:
- It seems to be publicly available.
- It doesn’t have a copyright symbol or is not registered with the US Copyright Office.
- You give credit to the original creator.
- “Everyone else is using it.”
For example, imagine that you have posted your own version of a viral meme that uses a still image from a Hollywood movie. Even if the meme is circulating widely, the image is still copyrighted, and your use of it in a branded post could be infringement.
To avoid inadvertent infringement, be certain to use only content that you have:
- Created in-house (either personally or through a marketing agency);
- Licensed through a paid or royalty-free platform;
- Explicitly obtained permission for (written consent is best).
2. Be Careful with Hashtags, Handles, and Mentions
Words and phrases on social media—like hashtags, usernames, and slogans—may be registered trademarks, or, if unregistered, may have common law rights attached to them. Using them without permission, especially in ways that suggest your brand is affiliated with someone else’s, may trigger a trademark infringement or false endorsement claim.
Examples of when this risk might arise include:
- Using a competitor’s brand name in a hashtag for one of your own campaigns
- Creating a username or profile that mimics a well-known brand;
- Tagging companies or influencers in a way that implies endorsement without their consent.
To mitigate your risk, don’t use other brands’ names unless you’re referencing them factually and truthfully. Be careful to avoid suggesting or implying sponsorship or endorsement unless there’s an actual written agreement. Before launching a media campaign, run a trademark search to ensure there is no overlap with a registered or common law mark.
3. Get Written Permission Before Using User-Generated Content
User-generated content (“UGC”) includes items such as customer photos, testimonials, or social media posts, and it can make for powerful marketing. But you don’t automatically have the right to use it, especially for commercial (i.e., advertising) purposes. Even if someone tags your product or posts a glowing review, they still own their content.
To be safe, always ask for permission before making use of UGC. This permission can be embedded in your terms of service or other agreements, or can be the object of a specific request. Even a simple message such as the following will help to protect you: “We love this photo! Would you mind if we shared it on our feed? Please reply YES to allow us to repost it.”
4. Giving Credit Is Not a Legal Defense for Copyright Infringement
A common misconception is that attribution, or “giving credit,” allows use of copyrighted material. While such attribution is good etiquette, it is not a legal license or a defense to copyright infringement.
For example, if you were to repost a photographer’s photo that was posted on Instagram and tag the creator, the photographer could still file a copyright claim against you. In short: always get permission.
5. Fair Use is not a “Get out of Jail Free” Card.
On a related note, many users of content lean in to the so-called fair use doctrine, mistakenly believing there is a simple standard for how many seconds of a video, or how many words of a published work can be used without permission. In reality, fair use is a narrow exception and rarely applies to commercial use. Courts evaluate fair use on a case-by-case basis, considering factors like the purpose and character of the use, the nature of the copyrighted work, the amount used, and the effect on the market for the original. Simply using a short clip or excerpt does not automatically qualify as fair use, especially if the new use is promotional, monetized, or substitutes for the original.
Fair use is most likely to apply in contexts such as commentary, criticism, parody, news reporting, or education, where the use is transformative and not made for commercial gain. Even in those situations, courts still consider whether the new work adds significant new expression or meaning and whether it impacts the value of the original.
6. Protect Your Own IP—and Enforce It
Your business likely owns its own valuable intellectual property, such as logos, slogans, brand names, etc. This is valuable property, but you can lose your rights to it if you don’t enforce and protect it. You can do this by:
- Registering your trademarks with the United States Patent and Trademark Office (assuming they are in use in interstate commerce) and your copyrights with the U.S. Copyright Office.
- Using copyright notices and trademark symbols including ©, ®, and ™ as applicable
- Carefully monitor for unauthorized and infringing use.
- Send cease and desist letters and/or file takedown notices under the Digital Millennium Copyright Act whenever appropriate.
Summary
Social media feels fast and informal, but the legal consequences are very real. Treat every post, tag, and share like you would any other marketing use, such as a brochure or website. If you have questions or concerns regarding your rights or ability to use certain IP, or need help with drafting social media policies for your employees, developing content licenses, or registering trademarks or copyrights, the team at Way Law is always here to help!