Cross-promotion and screen shots - could you be infringing copyright law?
After rejecting a multi-billion dollar acquisition offer from Facebook in 2013, Snapchat has obtained legitimacy as a social media platform through the cult success of users such as DJ Khaled.
Fundamentally, the app allows users to send pictures and videos,. These are known as Snaps, which can only be temporarily viewed before being automatically deleted. The sense of immediacy that this creates has encouraged brands to turn to the Ghostface Chillah, Snapchat’s talismanic logo, to re-engage with millennials.
When Adidas launched the Yeezy Boost sneaker they relied on Snaps from celebrity influencers, particularly within the Kardashian-West tribe, to drive hype surrounding their release. Meanwhile, CNN uses Snapchat stories to allow users to explore their daily coverage of the US presidential primaries.
However, these attempts to leverage the app’s functionality may have been undermined by users taking screenshots of Snaps – particularly where these images are uploaded to other social media platforms.
Screenshots and the Copyright Act
In Ice TV Pty Limited v Nine Network Australia Pty Ltd, the High Court confirmed that copyright protects an author’s original expression in an artistic work. In doing so, the Court prioritised the need to establish originality and authorship to demonstrate that copyright subsists in an image – rather than merely pointing to the skill and labour invested in the work. As a result of this, the app’s informal context doesn’t prevent original Snaps from obtaining copyright protection.
By taking an unauthorised screenshot of a Snap and saving it to their phone, it is likely that users will infringe the sender’s exclusive right to control the reproduction of the image in material form. Additionally, where the image is posted online they are also likely to infringe the author’s right to publish the work and to communicate it to the public.
Potentially this reasoning could also be extended to a video sent as a Snap where the screenshot copies a substantial part of the film. In more limited circumstances, a screen shot that fails to attribute the work to the author may also infringe their moral rights.
In some instances copyright owners may benefit from the unlicensed cross-promotion of their brand on other social media platforms – even where infringement occurs. However the transformation of the transitory snap to a permanent image could also erode the creative investment in a Snap and may be used by competitors to attack your brand.
Options for brand owners
Snapchat’s terms of service provide that they will take reasonable steps to remove reports of infringing material. Alternatively, brand owners may also bypass the app’s takedown procedures by contacting other platforms that a screenshot has been posted to.
Ultimately, the overlap between Snapchat and other social media platforms highlights the distinction between the legal existence of the rights of the copyright owner and the commercial decision to enforce these rights.
Celebrate success right
Businesses need to be wary of the possibility of infringement where they cross-promote Snaps. In addition to this, copyright owners should consider selectively using their rights to limit the dilution of their investment in their brand image on Snapchat.
By Tom Johnston and Sheree Hollender