Over the course of the last decade, the entertainment landscape has undergone a seismic shift. The traditional channels for discovering talent still exist, of course — when the COVID-19 pandemic subsides, A&R executives will go back to attending shows, and comedy agents will hit Hollywood’s hottest stand-up clubs. But social media, which has seized much more of the stage during the pandemic, won’t want to give it up. If you can take advantage, you should— but you should also know your legal rights.
Who Owns Your Work?
Today, a single viral tweet or TikTok video can create a star overnight. A popular YouTube channel can be just as valuable as a well-written script. What the industry views as marketable intellectual property has expanded; and with that, new questions arise surrounding ownership.
So let’s say your tweeted video just went viral. You’ve got agents from the Big Four knocking on your door. Who owns that content? You, or Jack Dorsey?
At first blush, the answer is clear: You own the content you post to your social media accounts. Your copyright in work of your own authorship exists the moment you put pen to page; or, in this instance, you hit “tweet.” But when you sign up to use social media platforms, the “click to agree” button that provides you access also sets forth certain terms and conditions which apply whether you read them or not.
For example, Instagram’s terms of use include a “non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content.” And if you do not like that, the license is cancelable by deletion of the content in question, or your account as a whole.
Twitter, Facebook, YouTube and TikTok all require users to consent to similar license agreements before granting access to their platforms. Generally, this should not be cause for concern for a viral moviemaker. While platforms will sell the information they learn about you in your postings, generally, they do not sell your creative materials to third parties. But, this is not because they can’t do it, but more because of the terrible public outlash that would result if they did do it.
Of course, these licenses do permit platforms to incorporate user content in their own advertisements for the platform company, and you can simply never know for sure where your content, once posted, might appear with the sanctioned consent of the platform. And it isn’t all bad: Generally, if your TikTok video is spotlighted in a commercial for TikTok, you are likely to profit from that exposure, even if not directly from TikTok.
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Short of abstaining from using social media altogether — which is a professional impossibility for most creators in this day and age — these licenses are pretty much immovable. And while there is little risk that platforms’ access to your content will have any long-term adverse effects on its marketability, it may be advisable to keep certain things, such as a script, off social media if you sense a would-be buyer might not be thrilled that Facebook already has a license to use it — even if there is only a remote likelihood of Facebook doing so.
What About Other Users?
When you publicly post content on social media, of course, the bigger concern is often that someone else will steal your stuff and profit from it. If it is a pure act of copyright infringement, there are remedies. In fact, there are rather well-developed, easy-to-use remedies under the Digital Millennium Copyright Act that provide for digital takedowns to occur, without the need for court intervention. These remedies can also be used to make sure any ad revenue generated from the infringement flows to the legitimate creator.
Of course, as with all legal issues, there is always another side: An alleged infringer will not be held liable if the Doctrine of Fair Use is found to apply. The work of conceptual artist Richard Prince presents an apt example of these risks.
Prince has repeatedly landed himself in hot water over alleged appropriation of social media content created by others. He is known for taking screenshots of third-party Instagram posts, blowing them up on canvas, and displaying the final products at high-end galleries. Understandably, authors of the original works object to Prince profiting. His pieces have exhibited at the world-renowned Gagosian Gallery in New York, as well as other contemporary art institutions. However, because he “transforms” the original creations of others into something entirely creative in their own right, his actions are repeatedly deemed as “fair use.”
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