Always Read the Terms of Service on Social Media

By Posting to a Social Media Site, You Agree to its Terms of Service

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While social media was prevalent before the COVID-19 crisis, it has become even more vital as a primary means of interacting with friends/family, current customers, and potential clientele.

By using these sites, users agree to their “Terms of Service,” sometimes referred to as the “Terms of Use,” which essentially act as a contract between the user and the social media platform. By posting content on a specific social media site, users are subject to that site’s Terms of Service (TOS), as two recent court cases have reminded us.

Photographer Loses Photo Rights to Instagram

The first case, Sinclair v. Ziff Davis, LLC, and Mashable, Inc., involved Plaintiff Sinclair, a professional photographer, who uploaded a photograph titled “Child, Bride, Mother/Child Marriage in Guatemala” to her public Instagram account. The Defendant, Ziff Davis, owns Defendant Mashable, a media and entertainment platform.

In March 2016, Mashable published an article about female photographers whose work raises awareness of social justice issues. In this article, Mashable used a technical process called “embedding” to incorporate the photograph that Sinclair previously uploaded to the server of Instagram. As a result, Mashable viewers could see the embedded photograph, even though the photograph was hosted on Instagram’s server.

Instagram uses a service called “application programming interface,” or “API,” to enable users to access and share content posted by others whose accounts are set to the public mode. Before publishing the article, Mashable did reach out to Sinclair and offered her $50 to license the photograph, but she refused. Sinclair sued Ziff Davis/Mashable for copyright infringement.

The court ruled that because Sinclair uploaded the photograph to Instagram and designated it as “public,” she agreed to allow Mashable, as a sublicensee of Instagram, to embed the photograph on its website. According to the TOS, Sinclair granted Instagram the right to sublicense the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to display the photograph.

The TOS state that, by posting content to Instagram, the user grants to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content that the user posts on or through Instagram, and the user’s content is subject to Instagram’s privacy policy. Pursuant to the privacy policy, Instagram users can designate their accounts as “private” or “public,” and users may change these privacy settings whenever they wish. All content that users upload and designate as “public” is searchable by the public and subject to use by others via Instagram’s API.

Sinclair tried to argue that it was unfair for Instagram to force professional photographers like herself to choose between using the private mode on one of the most popular public photo-sharing platforms in the world, and granting Instagram a right to sub-license photographs to users like Mashable. However, by posting the photograph to her public Instagram account, the court ruled that Sinclair had made her choice to abide by the TOS .

Court Sides With YouTube in Removing Videos

The second case is  Mishiyev v. Alphabet, Inc., involves Mishiyev, a YouTuber who goes by the name DJ Short-E. He claims to have had 250,000 subscribers between his two channels, with over 110 million views.

At some point, Mishiyev became concerned that YouTube was not alerting his subscribers to his content, and he threatened a lawsuit. After this threat, Mishiyev started receiving notices that his content violated other’s copyrights (copyright infringement takedown notices as per the Digital Millennium Copyright Act safe harbor). In 2019, YouTube terminated Mishiyev’s account, supposedly due to repeated copyright violations.

Mishiyev filed suit against YouTube for wrongfully removing his videos. He believed that the removal was in retaliation against the threatened lawsuit regarding the alerts rather than based on copyright violations. The court stated that, as Mishiyev’s complaint was YouTube’s decision to terminate his account and disable the channels associated with it, YouTube’s “Terms of Service” agreement governed the terminated relationship. The agreement vested YouTube with significant control over the operation of its service, including the ability to remove uploaded content.

Although the TOS stated that users could dispute copyright claims against their channels, the agreement gave YouTube sole discretion as to whether to restore the videos, as well as whether to send the counternotice to the copyright owner. The judge stated that “YouTube did not agree to act as a neutral processor of notices and counter-notices. YouTube retained control to evaluate counter-notices and infringement on its own”.

YouTube, therefore, complied with its contractual commitments through the TOS, and the judge dismissed the case with prejudice.

Read the Terms of Service Before Posting to Social Media

While we continue trying to stay connected during these unprecedented times, keep in mind that we are subject to the social media terms of service. Courts apply the TOS strictly when addressing issues between users and social media sites, so be sure to read and get familiar with the terms and their rights on each specific site.

Pittsburgh Intellectual Property Attorneys

Kathleen Kuznicki assists business owners, entrepreneurs, and inventors with all things related to intellectual property and brand protection, including patents, trademarks, copyrights and licensing. She can be reached via email at Kathleen Kuznicki or (724) 776-8000.

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