Social Media Legal Tips for Small Businesses

Updated: Feb 11

As more and more small businesses use social media to engage with and lure customers, it is important to understand the legal ramifications of posting material online. You may create your own content and images or you may repost material created by others. Either way, there are certain things to be aware of.

Copyright law protects photographs, but the ownership of a photograph can be a tricky issue. Does the photographer own the photograph? Or the person who posted the photograph? Or the person shown in the photograph? It could be any of the above. Businesses posting photographs taken from online sources on Instagram or Facebook should make sure that appropriate licenses are obtained. If the photograph is of a person, then appropriate releases from anyone shown in the photograph also need to be obtained so you are not violating their rights of privacy/publicity.

If you are re-posting your client’s/customer’s image of your business, then you want to ensure that you give appropriate credit and attribution. In addition, every social media platform has its own terms of service. While many don’t bother to read the terms of service, most sites require that you only post material for which you own copyright or for which you have permission to post. By agreeing to these terms, you are legally binding yourself into a contract with the site and any breach can land you in legal trouble.

Another common term on social media sites is that you are giving them a license to use the content you post on their platform. For example, Instagram’s Terms of Use state that:

“... We do not claim ownership of your content that you post on or through the Service. Instead, when you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us 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 (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it….”

This can be especially important for photographers because if they have an exclusive licensing arrangement with someone, they cannot post their work on Instagram. Posting on Instagram would invoke a breach of the exclusive licensing agreement which could lead to severe monetary damages.

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