Intellectual Property within Social Media - by Henry Yau, Powell Gilbert LLP

Do you own that family photo you shared publicly on Facebook? Can you use that comment you saw on Twitter for your own start-up business? Can Weight Watchers use that Instagram photo of your husband in Speedos for their advertising without your permission?

In this day and age, professional bloggers, YouTubers and even casual-posters of the general public have the ability to gain thousands of followers and generate a huge profit in a matter of seconds by uploading images and videos to the internet. This simultaneously creates a range of intellectual property rights. But who actually owns the content posted online? We look to the popular social network sites Facebook and Instagram for an answer.

Ownership of intellectual property rights within social media is actually quite simple - you own all the content you created and upload. In fact, it’s even in Facebook’s Terms of Service: “You own all of the content and information you post on Facebook”.

The caveat? When you sign up to Facebook, you grant them a “non-exclusive, transferable, sub-licensable royalty-free, worldwide license” to use, modify or reproduce any content that you share publicly. This means they can use your content for free, for any reason, anywhere in the world, and even pass these rights to third parties. Facebook, Instagram and other social media sites wouldn’t have become so successful without this broad licence to users’ content.

What has caused a great deal of controversy is that these sites can use your content and associated IP without your knowledge. Some argue that this transfer of rights is exploitative, but it is perfectly legal since you have agreed to ‘share’ your content to the world through the social media platform.

This is where the debate starts. On the one hand, when you upload your artistically edited photo, you don’t expect someone else to claim it to be theirs or to see it in a global marketing campaign, such as the 2017 case against Tourism Tasmania. On the other hand, if you have published content within a public setting, you have allowed the world to access that content. You can however gain some control by limiting how your content is used, through Facebook’s Privacy Settings for example, or simply deleting your account which will void the licence between you and the social media site.

In summary, you own your content but social media platforms can use and transfer this use without your consent – so think twice when you post that selfie with a monkey.

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