Social Media and Copyright: Can I Post that Photo?

It has become commonplace to witness photos spread across the Internet like wildfire – to “go viral” and “break the Internet” are phrases with fairly recent origins.  Most businesses now use Instagram, TikTok, Facebook, X, LinkedIn and other social media platforms to promote their services or products.  But when a business posts a photo on Instagram or another site, who is the copyright owner and what rights do others have to use or disseminate that photo? The question of who owns what and how social media platform terms and conditions play in are relevant questions in an age where social media users relish the opportunity to instantly tweet, post, re-post, share and over-share around the world.

Social media is fundamentally about sharing content, making the risk of copyright infringement ever-present in a climate of legal uncertainty.  Consider this scenario:  A customer posts a photo from her cell phone on Facebook of herself eating a burrito at a Mexican restaurant that was taken by her friend.  Who is the copyright owner of the photograph?

The Law in Canada

The question of who owns the rights in a photograph has an answer in Canada’s Copyright Act as amended by the Copyright Modernization Act in 2012. Prior to 2012, photographers were not the automatic copyright owners of their photographs; if a photographer took photos for a customer, copyright instead belonged to the individual who commissioned the photographs, as opposed to the individual who took them.  Since 2012, photographers have the same rights as other creators under the law, regardless of the nature of their work. Generally speaking, if you take a photo, you are the copyright owner.  In the case of the burrito photograph, it was the burrito-eater’s friend who snapped the photo.  While there are exceptions under the law, in this instance, the copyright owner is, in all likelihood, the burrito-eater’s friend.

Social Media and Copyright

Is it an infringement of copyright to post someone else’s photo on social media? Under Section 27 of the Copyright Act, “[i]t is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.”  So, if you post a photo on Facebook without permission of the copyright owner, generally speaking, it is an infringement of copyright.  There are, however, exceptions to this foundational rule:

1. Fair Dealing: This exception permits the use of copyrighted photographs in certain circumstances, including research, private study, criticism or review and news reporting.
2. User-Generated Content: Another exception applies to non-commercial user-generated content created using existing work which was published or otherwise made available to the public.
3. Personal Purposes: It is generally not an infringement of copyright for an individual to use for private or non-commercial purposes a photograph that was commissioned by the individual for personal purposes and made for valuable consideration.
4. Determining the applicability of these exceptions (as well as others) in practice raises a host of questions beyond the scope of this article. We will walk through copyright infringement exceptions in our next blog post in this series.

Now let’s take the example of the burrito-eater and her friend. The burrito-eater posted the photo on Facebook, but is not the copyright owner.  However, her friend encouraged her to post it, but asked to be tagged in the photo. In this scenario, it could be said that the burrito-eater’s friend gave her permission to use the photo on Facebook on condition that she be associated with the photo.  When the photo is publicly posted to Instagram by the burrito-eater, it is wildly popular and is shared on Instagram by hundreds of people within a few hours.  In fact, it becomes so popular that the Mexican restaurant owner sees a promotional opportunity and copies the photo and posts it to the restaurant’s Instagram account.  Does the Mexican restaurant owner have the right to do this?

Social Media Terms and Conditions

Navigating copyright laws is complicated by social media platform terms and conditions.  In a recent Quebec case, Chung c. Brandy Melville Canada Ltd., a photographer took photos for a company but limited the right of the company to use the photos.  The company was only permitted to use the photos on Instagram and Facebook as long as the photographer’s name was associated with the photos – any other use required a licence in writing.  The company later went on to use one of the photos in promotional postcards. The court found that the photographer was the author of the photo used commercially by the company and he had not authorized such use.

However, in the case, the question arose as to the impact of using Instagram to share photos. The company argued that Instagram’s rules and regulations stipulate that posting photos on the platform results in the loss of all intellectual property rights.  However, the matter was not proven as the rules and regulations were not produced into the court record. Nevertheless, the company’s argument raises an important question: how do social media platform terms and conditions affect copyright owners’ rights when photos are posted and shared publicly? How about when the photos are posted and shared by someone other than the copyright owner? The short answer is: it depends on the terms and conditions.

In the case of the burrito-eater, the photo was posted on Facebook with the permission of the copyright owner.  When you post a photo on Facebook, you grant Facebook (via its current Statement of Rights and Responsibilities) a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any intellectual property content that you post.   Basically, you grant Facebook the right to use your photos in advertisements or for other commercial purposes, to generate a profit from your photos, and to allow others (including other companies) to use your photos (all while not paying you a dime).  That being said, if you are the copyright owner of a photograph that you have posted on Facebook, you do not give up or dispose of all of your intellectual property rights when the photo is posted.

In the case of the Mexican restaurant owner, assuming he did not obtain permission from the copyright owner or a licence from Facebook, posting the photo on Instagram was an infringement of copyright and a violation of Instagram’s current Terms of Use.  Under Instagram’s Term of Use, you must comply with copyright laws and warrant that you own the photos posted by you on Instagram. Now let’s assume that the burrito-eater’s friend contacted the Mexican restaurant owner about the infringement and they end up entering into a licence agreement so that the Mexican restaurant can now use the photo for promotional purposes. However, let’s not forget about the burrito-eater who is the subject of the photo.  In this case, she is not comfortable with all of the attention the photo has generated.  So, what rights does our burrito-eater have?  The use of the photo in association with the promotion of the Mexican restaurant may involve certain rights held by the burrito-eater, including privacy and publicity rights.  We will save discussion of these rights for a later blog post.

Exercise Caution

In this age of social media, the rules around copyright and photography can be blurry. However, ignorance is not an excuse when it comes to copyright law.  An innocent copyright infringement is still an infringement and while, in most cases, the worst case scenario involves a demand to remove the copyrighted content, you may face more severe repercussions, especially if a photo is being used for commercial purposes. When in doubt, do some digging: review the terms of the social media platform you are planning on using, obtain permission in writing, consult a lawyer, and exercise caution.

John Yiokaris, Sotos LLP

John Yiokaris is a partner with Sotos LLP in Toronto, Canada’s leading franchise law firm. He has been recognized by Chambers Canada, LEXPERT, Who’s Who Legal, Lexology, and Best Lawyers in Canada as a leading Canadian franchise law practitioner. John can be reached directly at 416.977.3998 or jyiokaris@sotos.ca.