The #CreateorCredit hashtag currently has just over 4000 uses on Instagram alone. Launched to bring awareness to the ever-growing issue of unauthorized content appropriation on social media, it’s a movement that’s gaining traction fast. It is almost standard practice these days for individuals and businesses to find images on Instagram or Pinterest that fit their aesthetic, and ‘curating’ a perfect-looking social media presence that gets all the follows and double-taps…but is it right, or even legal?
As a content creator myself, I understand the frustration that creatives face when they spend thousands on equipment (their ‘tools of trade’), years on developing their craft and honing their skills, and countless hours building relationships, selling their services & promoting their portfolio, only to have someone use their work for free. It can feel disappointing, and at times bitterly unfair when another account is using the content you slaved over to further their own brand.
‘But…we credited you!’
Yeah, the last time I checked, ‘credit’ didn’t pay my phone bill or put food on my table, mate.
Despite my obvious vested interest in the topic, I was curious as to where the law stood in Australia. What are my rights as a content creator? What are the rights of social media users to appropriate content posted on various platforms to fill their own feeds? Believe me, I get it - it’s TOUGH to build a social media presence worthy of engagement if you don’t have the time, skill or resources to create quality content. Does that mean it’s ethical to use other people’s work to build your following? No. But if you did, would it be legal?
A Question of Copyright
I recently chatted to Intellectual Property lawyer James Skelton of Swaab Attorneys about copyright law in Australia and how it applied to social media use.
Is Crediting Enough?
According to James, you must ALWAYS seek the content owners permission before using any of their work on your own account, even if you do give them credit. Failing to do so can make you vulnerable to prosecution for infringing their copyright.
‘Having said that,’ says James, ‘once you receive permission, it is perfectly acceptable to share that person’s work. They’re likely to be grateful that you’re opening them up to new audiences!’
However with so much content doing the rounds of social media these days, it can be extremely difficult to trace the original owner of a single piece of content – so what then?
‘Not seeking the consent of the content owner could mean that you're on the receiving end of a nasty 'cease and desist' letter. By using a particular work without permission, you are infringing the owner's copyright and the owner may then try to take you to court to receive money for your use of their copyrighted material. The number one rule to have in your mind is “if in doubt, don’t.”’
So just to be clear here, guys…’Pic via Pinterest’ or ‘Source Unknown’ simply won’t cut it (and could get you in a LOT of trouble).
Individual vs Business Use
If you’re thinking, ‘But I’m just one person! I’m not using it for commercial purposes!’ it actually doesn’t matter, although the potential penalties may differ.
James says, ‘Both individuals and businesses can be sued for copyright infringement. Of course, the severity of each situation will depend on the particular circumstances, [and] using an image for commercial purposes will usually be treated more severely if penalties are being considered by a court.’
And just so you understand what those potential penalties are, James explains below:
‘Fines usually only apply for criminal offences involving the Copyright Act, but can be up to 550 penalty units or imprisonment for up to 5 years for some indictable offences for an individual, and even higher for corporations. Civil remedies are more common and can result in damages, an account of profits, delivery of the infringing material or an injunction being ordered by the court.’
A Sharing Economy
When every blog, news article & video in the Internet-O-Sphere has every social share button in existence attached to it, you could be forgiven for assuming that you’re being encouraged to share other people’s content, and to an extent that’s true.
James says that when you ‘share’ content by using share buttons, the difference is that it links to the original source, driving your audience directly there as opposed to a simple ‘credit’ that relies on a user to decide for themselves.
If you find an article you think will be of interest to your followers, but it doesn’t have share buttons, James says it’s advisable to share a link to the original content, rather than making a copy and reproducing it on your own site.
‘Sharing a link allows you to spread an idea of interest but also direct your followers to the content owner's own space.’
Memes, and the idea of ‘Moral Right’
Everyone loves a good meme – they are generally hilarious, and can often make poignant social or political statements. Sharing them (or making them) can seem too hard to resist at times.
But James says that you must proceed with caution. ‘Memes, images, videos and GIFs also attract copyright protection under the Copyright Act so you should still seek the owner's consent before posting any of these. In fact, if someone uses a photo or illustration without the owner's consent and turns it into a meme, this could be considered an illegal adaptation of the original work and the original creator's moral rights could also be infringed.’
So what is a ‘moral right’ and how does it differ from copyright infringement?
‘Moral rights are the rights individual creators have in relation to copyright works they have created,’ says James. ‘They include the right to be attributed (credited) for their work, not to have their work falsely attributed and not to have their work treated in a derogatory way. If moral rights are infringed, a court can make orders for things including financial compensation, an injunction (that the particularly activity be stopped), a declaration or an apology.’
#Motivation – When Is It Ok To Use Someone’s Words?
It might be surprising to learn that using other people’s words – whether that’s quotes, lyrics, poetry or literary excerpts – can also put you in breach of copyright.
James explains that copyright ‘generally lasts for a period of 70 years after the end of the calendar year of the date of the author’s death for works (provided the work is published at the date of death), and 70 years from the date of publication for sound recordings and films (provided the work is published at the date of death). Copyright in broadcasts continues for a period of 50 years from the year in which the broadcast is first made. After this time the works usually enter the public domain – like Christmas carols for example.’
So it pays to stop & think before tapping out that Oprah quote & posting it on Instagram – it just might land you in hot water.
The Instagram Feature Account & How To Navigate Copyright
Many accounts these days exist solely for the purpose of #inspo. Many do this very well and have large followings, engage with their audience, and credit their ‘features’ correctly. Most artists would be thrilled to have their work featured on these accounts. However, owners of these accounts need to understand that a happy artist & a correct credit doesn’t negate the need to seek permission first.
James suggests that the owners of these accounts reach out to the copyright holders to establish an arrangement to share the content, but agrees that in most cases the content creator would be more than happy to allow this to happen. ‘Think about how much designers are willing to have their works profiled in magazines. So try to find an arrangement that works for both parties.’
How To Protect Yourself As A Content Creator
I’ve spent a lot of time in this article trying to help you understand what you can and cannot do as a user of social media, but I want to address some of things you can do as a creator to try and avoid any nastiness in the first place.
James’ advice is: ‘If you want to protect the copyright in your works, the best way to start is to make your readers aware that you know that copyright subsists in your works. This is usually done by adding the © symbol and the copyright owners name. You should also have a way for people to contact you to seek your permission to use your content on their own accounts.
If you think that someone has infringed your copyright, there are a number of good resources available on the Australian Copyright Council and Arts Law Centre websites for you to check out in the first instance. You should then talk to an intellectual property lawyer to see what options may be available to you. Most issues can be resolved without having to go to court.’
If you want to make people aware not to use your content without permission, another way is to simply state this on your social media profiles and website. By adding a simple line to your Bio and About pages such as, ‘Please ask before reposting or reusing my content,’ you are publicly making people aware that it’s not ok to republish your work without consent (whether they heed this or not is another matter!).
Ok, I Can’t Use Other People’s Stuff – What The Hell Do I Do Instead?!
That’s a great question, and I’m glad you asked. Using other people’s content without permission is a big no-no, and a practice that I hope starts to die really soon. But I do understand that not everyone has the skill, time or resources to develop unique content for all their channels, and THAT’S OK. There are definitely other avenues you can take.
Here are 6 easy options you can implement today:
- Reach out and ask that person if it’s ok to repost their image / blog / video. Nine times out of ten, they’ll be happy to oblige, and thrilled you even want to. Problem solved.
- Use paid stock images. There are heaps of good sites doing gorgeous, affordable stock imagery these days, it’s not necessarily the boring, cliché images of old. Try Haute Stock or Her Creative Studio for styled images geared towards the modern female entrepreneur. For thousands of design assets at your fingertips, give Creative Market a crack – it’s like Etsy but for photos, fonts & graphics! (Make sure you read and understand the licensing agreements when purchasing stock imagery, so you know how and when you can use the images).
- Invest in a photographer or stylist to create some bespoke images for you. If you really want your products showcased in their best light, this is the way to go. It’s more affordable than you think, and your branding will thank you for it. Contact yours truly for on location photography, or try my friends at Creatively Squared or Pretty Squares for the hot styled option.
- Use free stock sites. Yes, there are quite a lot of free stock sites where you can download and use high quality, gorgeous imagery to your hearts content, mostly without needing to credit (but please double check licensing agreements as they can vary). Try Unsplash, Pexels and Pixabay for a range of great imagery across lots of different niches, all donated by generous artists.
- Sign up to Canva. If you’re in need of quick & dirty graphics for social, blog & websites, Canva is your new best friend. With thousands of templates on offer, you no longer need to outsource to a graphic designer EVERY TIME you want something to share on Facebook. And best of all, it's free.
- CREATE IT YOUR DAMN SELF. Stop worrying so much about your image being as perfect as what you’d find in Vogue, your graphic looking professionally designed, or your blog being a Pulitzer Prize winner, and just make it authentic. You don’t need to slave over creative to make it resonate, just put your heart into it.
I hope that has helped clear up any confusion you might have regarding how, when and if you can use other people's content on your own accounts. Keep in mind that there are content creators out there struggling to make a living, and using their content without permission is unethical at best, and illegal at worst. If you are unsure, remember James' sage advice: 'If in doubt, don't.'
Disclaimer: This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
ABOUT JAMES SKELTON
James is a member of Swaab Attorneys’ corporate, commercial and intellectual property practice with a focus on business advice, corporate and commercial transactions, commercialisation of intellectual property rights and brand protection strategies.
James has been named the '2017 Australian Young Lawyer of the Year' by the Law Council of Australia. He won the 2017 Lawyers Weekly "30 Under 30" Award for commercial law in Australia and was previously a finalist in the 2017 & 2016 Australian Law Awards for "Young Gun of the Year", achieving industry-wide recognition for professional competence while highlighting a passion for the law and dedication to personal advancement.
Prior to joining Swaab, James worked at the Federal Court of Australia and also has experience with matters in the Federal Circuit Court, the Copyright Tribunal and hearings conducted before IP Australia. James has a Juris Doctor and Bachelor of International Studies from UNSW, developing additional international business experience at the University of Bonn, Germany.