In the old days, social media advertising was a drop in the ad-budget bucket. Today, with 75% of the world’s internet users on Facebook, it often is the bucket. Clients often want to know whether they are infringing on anybody’s copyright when they post ads on social media to promote their business. The answer usually depends on whether the subject ad can be considered “fair use” of copyrighted material.
A copyright owner has an exclusive right to use, reproduce, and distribute copies of his work. A limitation on this exclusive right is the doctrine of “fair use,” which acknowledges that not every act which violates a copyright should amount to liability for infringement. In other words, “fair use” permits the unlicensed use of copyrighted works in certain situations.
When deciding whether an unlicensed use of copyrighted material is considered fair use, courts look at four factors:
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The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
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The nature of the copyrighted work;
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The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
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The effect of the use upon the potential market for the copyrighted work.
There is no bright line rule, and all factors must be considered. According to the Supreme Court, the fourth factor is “undoubtedly the single most important element of fair use.” As a general rule, an unauthorized use of a copyrighted work will be considered fair use if it doesn’t interfere with the market for the original work. Also relevant is how the copyrighted work relates to the goods or services it is used with. Posting a lyric by John Lennon, for example, in an ad for a local farm-to-table restaurant probably won’t interfere with the market for John Lennon’s lyrics, or cause a person to believe John Lennon is somehow associated with the restaurant. Accordingly, such a post would probably be considered fair use. On the flip side, using a quote by Rachel Ray extolling the virtues of farm-to-table eating may have the effect of interfering with Rachel Ray’s market, rendering it less likely to be protected under fair use.
Of course, obtaining permission is always advisable as it provides the clearest understanding of the author’s position with regard to a work. If permission cannot be obtained, be prepared to remove the material in the event that the author requests that you do so, as it will likely resolve any dispute over the usage and avoid legal fees associated with responding to the request.
