You’ve taken a great deal of time and in some cases, money, to create unique content to use on social media. Your user-generated content (UGC) belongs to you, and in most instances, it’s not OK for other people or companies to use your UGC without your permission.
(BTW, if you’re not using UGC, you should be! Tyler Anderson of Casual Fridays spoke on this topic at Social Media Day San Diego and you can listen to his UGC podcast here.)
What are your rights when you find out your UGC is being used, displayed and shared on other websites, blogs, and social media platforms? What steps can you take to protect your intellectual property rights including copyright violations? When should you simply just look the other way and move on?
First let me say that intellectual property rights and specifically, copyright laws, are complicated and constantly changing. This is especially true when it comes to digital UGC copyright issues.
In this short post, I’m going to share several legal principals and links that will help you understand your rights and, take steps to protect your rights. If you have questions, reach out to an experienced intellectual property rights lawyer in your state.
When you create original UGC and share it on social media, you have a copyright and are the owner of that content. To have copyright protection, you do not need to have your UGC registered with the U.S. Copyright Office. However, to seek statutory damages in a copyright lawsuit, registration is necessary. More details here.
Exception to Copyright- The Fair Use Doctrine
This doctrine permits limited use of copyrighted material without having to first acquire permission from the copyright holder. If you’re using someone else’s UGC for education, news, or commentary, then the use may fall under the protection of the Fair Use Doctrine. This is a very gray area so be careful. More details here.
What to Do When Someone Uses Your UGC Without Your Permission?
Develop a New Mindset
Social media encourages engagement and sharing. I believe there’s a difference between someone sharing your content to help others or amplify your efforts and, stealing it as though it’s their own UGC.
The first thing I tell clients is to consider whether the other person’s use of the UGC is helping build your brand, promote your services, or helping build your top-of-mind awareness to others. If so, then you may want to encourage this person, and others, to share your UGC.
Cease and Desist Letter
If the use is unacceptable (for any reason), then send the other person a cease and desist letter. Most of the time other person hasn’t thought things through and will remove the unauthorized UGC content.
DMCA Takedown Request
File a Digital Millennium Copyright Act (DMCA) Takedown Request
The DMCA allows you to reach out to online services such as GoDaddy, Twitter, Facebook, Instagram, Snapchat, LinkedIn… and demand that the service removes the unauthorized UGC content from their site or platform. You can learn more about the DMCA here, and the Social Media Examiner has an excellent post that will take you by the hand and walk you through all the steps. It’s titled, “How to Submit a DMCA Takedown Notice.”
Terms of Service Agreements (TOS)
Keep in mind that many social media and digital provider TOS contractually change your intellectual property law rights including copyright. For example, if you upload a video to Youtube and allow other people to share or embed your UGC, then in most instances, no copyright violation has taken place. The law is constantly changing in this area, but the take-a-way for you is to always review the TOS if this is something you’re concerned with.
Filing a lawsuit is expensive and time-consuming. If you haven’t formally registered your UGC with the U.S. Copyright Office, then you will not be entitled to statutory damages if you win your case. Usually, these damages are significant and the primary source of recovery.
What I’ve observed over the years is as follows. The easiest, least expensive and fastest way to get your UGC removed from another site is to (1) send the cease and desist letter mentioned above and (2) file a DMCA takedown request with the internet service provider hosting the unauthorized UGC.
If the person, company, or service provider is located in another country, and unless there are hundreds, if not millions of dollars involved, I would not recommend spinning your wheels litigating the issue. Try using the two-prong approach mentioned above under “Best Practice” and keep your fingers crossed. It’s almost impossible for a small business owner to hold an international violator responsible for UGC infringement.
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Mitch Jackson is an accomplished California lawyer who enjoys helping online entrepreneurs and business owners with their legal needs. Learn more here.
Related links and Resources
Facebook Live Audio Copyright Issues: Things You Need to Know!
How to Report Crimes and Fraud to the Major Social Media Platforms
What Rights Do Musicians Have When Politicians Use Their Music Without Permission?
Talking Points From My “Legal” Presentation at Social Media Day San Diego 2017