Jamie PingorJanuary 25, 2022

Click, edit, and post – an action one can accomplish in less than a minute – an action that may have dire consequences under copyright law.

Gone are the days where we have to wait for the chance to share our thoughts in the local magazine or newspaper. Instead, we reach for our phones, anxiously searching for something clever to post. We may even take a screen shot or re-share a photo asking for the world to like and share.

However, what exactly is the world liking and sharing? Who is the original author? As the global pandemic has wreaked havoc on societies around the world, people have resorted to social media as a fun relief, a new career opportunity, or a way to promote their business. As a result, there has been an explosion of copyright lawsuits. Fun apps like TikTok, Instagram, and Facebook have their own copyright policies, but these policies are not enough to protect individuals and businesses from lawsuits.

The Copyright Act of 1976 is a federal statute that prevents the unauthorized copying of an authored work. Copyright law is an enumerated power in the United States Constitution, explicitly granting Congress the power to enact copyright laws. Over the years, Congress has made amendments to the Copyright Act in an attempt to keep up with the changing technological landscape. However, even with these amendments, copyright law has remained complicated.

The Copyright Act does not provide protection to works that are not “fixed in a tangible medium.” Such works, for example, include improvised speeches or performances that are not memorialized in writing or recorded. In addition, copyright protection does not extend to “any idea, procedures, process, system, method of operation, concept, principal, or discovery, regardless of the form it is described, explained, illustrated, or embodied in such a work.” For example, say an inventor discovers a cure for COVID-19 and decides to memorialize the invention in a lab notebook. The description of the process notated in the lab notebook is protected against copyright, because it is in a tangible medium; however, the idea is not protected by copyright law. The idea will be protected if the inventor applies for a patent and is thereafter granted patent protection or keeps the invention protected as a trade secret. The bottom line: using an authored work without the author’s permission may constitute copyright infringement. Furthermore, there is no bright-line test for determining how much copying of an authored work constitutes infringement. So long as the work is fixed in a tangible medium, an author may enforce his/her rights; however, the enforcement and eligibility of such rights may depend on whether the work is registered with the United States Copyright Office.

Registration with the United States Copyright Office is not required to claim rights associated with an authored work; however, registration makes the copyright owner eligible for statutory damages and attorney fees. Under the Copyright Act, statutory damages can range from $750 to $30,000 for each infringed work. A willful infringement may increase the damages to $150,000. Complicating matters even more, the Copyright Act does not require an individual to include a copyright notice on his/her copyrighted work such as a watermark.

Recently, celebrities like Jennifer Lopez, Ariana Grande, Justin Bieber, and Dua Lipa have fallen prey to copyright infringement. Most of these lawsuits stemmed from celebrities using paparazzi photos of themselves and posting the images on their social media accounts to promote brands. The photographers argued that they make a living off the revenue associated with licensing the photos, and if a celebrity posts the photos before the photographer can license the image, the value of the photo depletes because companies have less of an incentive to purchase the photos. Even though the photos were pictures of the individual who posted the image, the rights in the photo belonged the individual or companies that took the photo and registered the image with copyright office.

Copyright law is complicated and still evolving. There are many nuances and as a result, lawsuits can be costly. As the world switches to more transparent and quick-moving social media platforms, it is not only celebrities who should heed the warning and exercise extreme caution before posting, but any individual or business. When in doubt, paying a licensing fee or giving credit to the author may very well save you thousands in legal fees.

If you or your business have questions regarding your copyright rights, potential copyright claims by others, or copyright law in general, please contact our intellectual property attorneys at Walter | Haverfield.

Kristina Schiavone is an associate in the Walter | Haverfield Intellectual Property Group. She can be reached at 216.658.6231 or at kschiavone@walterhav.com.

Jamie Pingor is a partner at Walter | Haverfield and chair of the Intellectual Property Group. He can be reached at 216.928.2984 or at jpingor@walterhav.com.