In the modern age of social media, where things can quickly go viral and be shared by millions of online users, intellectual property is very much a legitimate concern. The degree to which you should be concerned, however, does rely on a few factors.
First, to understand a bit about IP laws in Australia. In Australia, there is no copyright registration system, as copyright is automatically given to creative works the moment they are put onto tangible media. From the moment a landscape is painted, or a poem is put to paper, the creator has copyright protection for those works.
However, some are confused as to the existence of “fair use” within Australia, as similar to the fair use laws found within the US and UK. While the US and UK enjoy more flexible “fair use” laws, Australia currently has “fair dealing”, which are a bit more restrictive in terms of acceptable uses.
In Australia, “fair dealing” allows copyrighted works to be used without permission, in the following scenarios:
If we apply this to social media, then it’s fairly straight-forward what you’d want to avoid sharing, especially on a social media business page. This doesn’t only apply to advertisements and status updates but comments as well.
For example, imagine a customer asks a question on your comment section, and you reply with a generic, but a copyrighted photo from Shutterstock. Let’s say you intended to use the photo as a “meme”, but you didn’t alter the photo. This would be a clear copyright violation because your usage of that photo on your business page certainly does not fall under any of the above scenarios.
Even on your personal social media page, it would be a copyright violation to share a random Shutterstock photo, but the odds of receiving a DMCA takedown notice against your personal social media page are slim to none.
What about actually sharing memes?
Memes are in a strange gray-area, as their viral nature and humorous text is often thought to satisfy the “parody and satire” requirement of fair use / fair dealing. Let’s take the popular “One does not simply” meme, which uses a still image from the Lord of the Rings film, with text added for humor.
Here, I’ve satisfied most of the fair dealing requirements. While I’m using a still image from Lord of the Rings, I’ve transformed it into an anecdote, an expression of an idea, altogether unrelated from the Lord of the Rings. I’m also using it as part of a review of copyright laws, and I’m certainly not using the image for economic benefit.
However, if you were to share this meme on a business page, things change a bit. For example, let’s say you own a coffee shop. And you change this meme’s text to say, “One does not simply wake up without a cup of our coffee”. Now you’ve transformed this image into an advertisement, even if in meme format, and that is definitely copyright infringement.
One another thing to be aware of is that original memes, or at least the characters in a meme, may themselves be copyrighted. While many viral memes are image stills taken from popular films, there are also plenty of memes that are original works of art. Some examples are the popular memes Grumpy Cat and Pepe the Frog. The owners of the actual cat featured in the Grumpy Cat memes have successfully sued for damages in the past, and Matt Furie, the cartoonist of Pepe the Frog won a $15,000 settlement against alt-right website InfoWars for selling posters with Pepe’s likeness, after Pepe was strangely adopted as a “mascot” for the alt-right, to Matt Furie’s fury.
So basically, sharing memes generally falls under fair use / fair dealing as used by individuals on social networks, but not for businesses. This is because as a business, it would be generally difficult to prove any kind of “fair use” where the meme’s usage did not somehow benefit the business, as any business page’s posts are primarily intended for consumer outreach.
How can I avoid being sued for copyright infringement in the social media age?
Simple. Don’t share anything that could likely be owned by someone else, in a way where it could be argued that your usage of that copyrighted thing would economically benefit you.
Taken to an extreme conclusion, that would pretty much mean never share anything that was ever written, drawn, or recorded by anyone else unless you have explicit permission from the copyright holder.
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