In the social media world, viral content is king. Some social media users create humorous or thought-provoking content in the hope that others will share it to attain ‘social fame’. Users may also copy or repurpose viral content by others to boost their own engagement.

So, are social media users allowed to post content that isn’t theirs, without permission from the rightful owner? The answer is no, and it all comes down to copyright.

What is copyright?

Copyright automatically protects the expression of an original artistic work. For example, a photograph is protected by copyright.

The owner of the original artistic work (or the owner’s estate) has the exclusive right to use, sell and distribute that work for a period up until 50 years after the creator’s death.


The #regram and the reshare

If a social media user reposts a photo on the gram without permission, tagging or crediting the owner of that content does not negate the user’s liability for copyright infringement. Users should also note that ‘not knowing’ content is protected by copyright is not a valid defence to copyright infringement.

Unfortunately for users, it is uncertain whether ‘embedding’ a social media post within a blog or website constitutes copyright infringement. There has been much debate over this in the United States, and the New Zealand courts haven’t considered this point yet.

However, it’s probably ok to use the ‘share’ function on Facebook, as the original poster has impliedly allowed other Facebook users to utilise the inbuilt ‘share’ button to repost. On the other hand, if the original poster has uploaded content that infringes another’s copyright, reposting that content may also constitute copyright infringement.

Unfortunately, when a photo is uploaded to Facebook or Instagram, the metadata is stripped. Metadata contains information such as who created a photo and when, which assists copyright owners with proving that content has been copied.


What about memes?

A meme can comprise of a number of altered images, merged together to create a new work. If the images used to create a meme are protected by copyright, the posting of the meme likely constitutes copyright infringement.

Some copyright owners appear to be cool with the use of their work in memes shared for non-commercial purposes, probably because they welcome the exposure that comes with it. However, if the creator or poster of a meme copies and shares the wrong person’s work, they could land themselves in serious trouble.

In some countries, creators of memes may be able to argue that any copying is covered by a ‘fair use’ defence to copyright infringement for the purpose of parody or satire. Although outdated, New Zealand’s copyright laws do not provide the same defence. Our fair use defence instead applies to a limited set of purposes, including criticism and review, and reporting current events (which does not extend to photographs).


What can users do?

Social media users should simply ask for permission before they share another’s content. Brands must understand that just because someone else has taken a photo of their product, this does not give them the automatic right to copy and share that photo.

If users are struggling for content inspiration, they can use free or paid stock photos, or images licensed under the Creative Commons scheme.

Lastly, a social media tip for copycats: original content screams authenticity to followers, helps build trust and engagement, and is the best way for a brand to stand out from the crowd.

Disclaimer: This article provides information only and does not constitute legal advice. If you need advice particular to your situation, please contact your lawyer or intellectual property professional.

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