With millions of posts made each day across several platforms, social media plays a crucial role in how we communicate – brought even more apparent during lockdowns arising from COVID-19.
Something content creators on these platforms rarely consider, are the rights they maintain over uploaded content. In this piece we’ve provided a byte-sized overview answering the question “who owns what after its uploaded” for each of today’s most relevant social media platforms.
With over half a billion users worldwide, LinkedIn (owned by Microsoft since 2016) is the world’s largest and most active business-oriented social media platform.
LinkedIn users own the content and information they post on LinkedIn. By posting content and information on LinkedIn, users grant LinkedIn a non-exclusive, transferable and sub-licensable, license to use, copy, modify, distribute and publish the content and information. LinkedIn acknowledges that the license to use specific content or information ends if the user deletes the content or closes their LinkedIn account. LinkedIn will not utilise a user’s content or information in advertisements without the user’s consent.
LinkedIn provides an intellectual property complaint process, to ensure users can complain if they consider that there is misuse or infringement of intellectual property rights including of copyright works and trade marks on the LinkedIn platform.
The world’s most popular social media site notes that users own the intellectual property rights in any content they create and share on the platform. However, Facebook’s terms of service contain the same licence clause as Instagram, granting Facebook a non-exclusive, transferable, sub-licensable, royalty-free and worldwide licence to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of your content. Similarly, Facebook can also use your name, profile picture and information about advertisement interaction without providing compensation.
Launched in 2010 and acquired by Facebook in 2012, Instagram dominates online photo sharing with 95 million photos and videos posted every day. Though Instagram’s terms of service notes Facebook does not own content posted on the platform, Instagram has 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 users’ content. This broad licence stops short of giving Instagram an exclusive licence to exploit your content. Yet it does provide Instagram with the right to do just about anything with your content, anywhere in the world, without having to provide you royalties or licence fees.
Instagram’s use of your data may include sub-licensing or transferring content rights to a third party without your permission. Further, Instagram retains the right to use information about a user’s profile for their business activities, including ads, offers and other sponsored content, without the need to provide compensation. Given Instagram’s ownership by Facebook, it can also use your Facebook data in order to target ads towards users. Creatives who rely on Instagram to promote their work (such as photographers), ought to be aware of the implications for the rights to their data due to the breadth of permissions granted to Instagram every time the platform is used.
Other issues can arise if users post material they don’t own. For example, celebrities such as Katy Perry and Justin Bieber were sued for posting images of themselves in public that they did not have the rights to post, as they were taken by photographers who did not give permission for the photos to be posted. This also violates Instagram’s terms of service, which prohibits users from posting content that infringes any intellectual property right.
WhatsApp is a cross-platform messaging system with over 2 billion worldwide users. Like Instagram, WhatsApp Inc was acquired by Facebook. Despite continued operation as a separate service from Facebook, some information is shared between the Facebook family of companies. Shared information includes the phone number used to verify the user’s WhatsApp account, device information such as the user’s OS and some usage information, such as when users first registered and last used WhatsApp and the frequency and type of use. However, unlike Facebook’s use of Instagram data, WhatsApp data is not used for improving Facebook’s targeted ads.
According to WhatsApp’s terms of service users grant WhatsApp a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, create derivative works of, display, and perform any information that is uploaded, submitted, stored, sent or received on WhatsApp. However, despite this broad licence, WhatsApp states that no information shared on the platform, including messages, photos and account information, is shared onto Facebook or any other Facebook-owned apps for other users to see. However, some information (such as a user’s phone number), will be shared with Facebook. Of some comfort to users, is that WhatsApp uses end-to-end encryption. Messages can therefore only be read by people who are part of the conversation; not by any third parties, including WhatsApp or Facebook.
WhatsApp’s IP Policy prohibits users from violating another party’s IP rights when using the platform. It allows for copyright and trade mark infringement to be reported to WhatsApp, including a request for removal of infringing content such as a profile picture, name or status message. The company also encourages users to consider resolving the issue with the infringer themselves by contacting the relevant user before reporting the issue to WhatsApp.
TikTok is an app available for iOS and Android that allows users to create and share lip-sync, comedy and talent videos of up to 15 seconds. It was launched in 2017 and has become one of worlds’ the most downloaded apps. It has also become one of the most hotly contested, with many nations banning, or threating to ban the platform.
When using TikTok, you remain the copyright owner of any content uploaded, but grant TikTok (owned by ByteDance, a Beijing-based company) an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence which covers a range of activities, including using, modifying, adapting, reproducing, making derivative works of, publishing and/or transmitting, and/or distributing and authorising other users of TikTok and related websites and applications and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your user content in any format. This licence extends to any platform that currently exists or will exist in the future. TikTok users also grant the company a royalty-free licence to use their user name, image, voice and likeness to identify the user as the source of any user content.
What does this all mean? This incredibly broad licence grants TikTok perhaps the greatest rights of any social media company to use the content created by its users in any way it sees fit and to use their image and likeness for commercial purposes. Users should therefore consider and balance any concerns they may have about the use of their content with the utility of the platform.
Some users have used TikTok to their advantage, such as rapper Lil Nas X who used the platform to promote his song ‘Old Town Road’ all the way to #1 on the music charts. However, there are also many everyday users who have granted TikTok a licence to use their content and information in whatever way the company sees fit, without making the gain Lil Nas X enjoyed.
Should I "get social" or not?
No matter which social media sites you choose to engage with, it is important to know what your rights are with respect to your data and what licences you grant to the companies who own these websites. This is particularly important to companies relying on social media platforms to market their businesses; you don’t want to unintentionally give your hard earned IP away for free.
Simon Gapes - Senior Associate, Lawyer
If you have any questions or require expert advice, please contact us.