Copyright – Ownership, Licensing and Infringement

Does Facebook, Instagram, Twitter, Pinterest etc. own my photos?

Let’s start by dispelling the myth that a social media platform owns any images that you post/share.

In a lot of cases, social media platforms, including Facebook, Instagram, Twitter, Pinterest etc., set out in their Terms of Use (or similar document), something to the effect of: ‘the platform does not own the work that you post/share, however, you grant the platform a licence to use (e.g. display, reproduce, modify, and distribute on the platform etc.) your work’.

And so, by uploading an image to a social media platform, while generally you would not forfeit your copyright, you are providing a licence to the social media platform to use your work.

One of the keys here is that you are responsible for what you post/share, and so you need to ask yourself – did I create this work, does my use fall within an exception to copyright infringement, or do I need permission to use the work?

Copyright

Copyright protection is automatic in Australia.  We do not have a copyright registration system, nor is there a legal requirement to publish the work or to put a copyright notice on it.

Generally speaking, if you are the original creator of a work, then you will own the copyright in that work.  Moreover, a work will ordinarily be protected as soon as it is put into material form, such as being written down or recorded in some way.

In the context of a photo, the photographer themselves will usually own the copyright in the work, and then have the exclusive right to use, sell, and licence the work, as well as to enforce their copyright as against an infringer.

Exception to infringement?

‘Fair use’ is a concept in US law that provides various exceptions to permit the limited use of material that is subject to copyright without requiring the user to obtain permission from the copyright owner.  Fair use does not, however, apply in Australia.

Under Australian law, we operate under a different concept to ‘fair use’, known as ‘fair dealing’.

The Copyright Act 1968 (Cth) (“Act”) provides various ‘fair dealing’ exceptions to copyright infringement, where under certain circumstances, the user is not required to obtain permission to use copyrighted material. The Act, however, does not specifically define what constitutes a ‘fair dealing’, however, does provide that specific ‘fair dealing’ exceptions exist for the purposes of:

• research or study;
• criticism or review;
• parody or satire;
• reporting news; and
• the giving of professional advice by a legal practitioner, registered patent attorney or registered trade marks attorney.

There is an additional requirement for the fair dealing exceptions for the purposes of criticism or review, or for the purposes of/associated with the reporting of news, that a ‘sufficient acknowledgment’ of the work is made.

Seeking permission

The best way to avoid infringing copyright is to obtain permission from the original creator of the work.  Such permission should ideally be by way of a licence agreement, signed by both parties, whereby express consent is obtained from the copyright owner to use their work.

This is where the majority of issues occur, whereby in large part, the majority of social media users (individuals and businesses alike), often fail to obtain the required consent, and more so in the case of businesses, they fail to have the copyright in works/graphic designs etc. that they have had commissioned properly assigned to them.  This can bring about significant exposure to liability for copyright infringement.

Recent examples

A few examples to illustrate some of the potential pitfalls of failing to adequately deal with the issue of ownership and/or licensing of copyright, are as follows:

In or about 2016, Tourism Tasmania encouraged photographers to post photos on Instagram with the hashtag, #discovertasmania. Tourism Tasmania then used those images as part of a digital billboard at Hobart Airport.  In response to claims from those photographers that their permission had not been sought to use the images, Tourism Tasmania resolved to remove the display from the Hobart Airport, and have also now updated their Terms of Use.

In the Federal Court of Australia case of Hardingham v RP Data Pty Ltd [2019] FCA 2075, a photographer, Mr Hardingham, made a claim as against an online real estate analysis and information provider, Core Logic (RP Data Pty Ltd), for copyright infringement. The photographer created floorplans and took photographs of properties for real estate agencies, and in turn, those real estate agencies would advertise the properties (together with the provided photographs and floor plans) on the online property listing platform, realestate.com.au.  Ultimately, however, the photographer was unsuccessful in his claim for copyright infringement, and one of the key reasons for this was that there were no express copyright ownership or licensing provisions in place between the photographer and the real estate agencies.

Key takeaways

The Tourism Tasmania matter serves as an important reminder for those that share/repost images (whether businesses or individuals) to always seek permission from the content creator, to the use of their work.

The Hardingham v RP Data Pty Ltd case, on the other hand, serves as a valuable reminder of the importance for content creators and photographers to ensure they have express licence terms in place.

On a similar note, it is also very important for businesses that commission content to be created for them, to ensure they are obtaining an appropriate assignment and/or licence of copyright in the commissioned works.

Finally, if you or your business has any concerns about ownership or licensing of copyright, seeking permission to use others’ works, or whether your use/proposed use falls within an exception to copyright infringement, please do not hesitate to contact Jacob Bartels at Active Law.

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.