Sublicenses and Unintended Sublicenses in Social Media

Description

Both individual and corporate social media account holders often take steps to get as much attention as possible. While this use of social media may be a relatively inexpensive way to advertise, it is not without risks. Using social media platforms can have unintended consequences that put intellectual property rights at risk.

A federal district court determined a professional photographer, who owns the copyright to a photo, unknowingly granted a sublicense to a company that allowed it to embed her photo in an article after the photographer denied the company's request for a license. Sinclair v. Ziff Davis L.L.C. and Mashable Inc. (S.D.N.Y. 2020). The court concluded that the photographer's post of her photo on her Instagram account put her photo at risk and, ultimately, resulted in relinquishing her IP rights. Under Instagram's terms and conditions, the court found, users can use an API to access and share content posted by other users. But, in the case of McGucken v. Newsweek (S.D.N.Y. 2020) the court reached a different conclusion. In that case, the court found that an artist who posts her work to Instagram, while licensing her IP rights in the work to Instagram under its terms and conditions, does not also necessarily lose her IP rights to third parties claiming to be sublicensees of Instagram. The Sinclair court, relying on McGucken, then reconsidered its decision and allowed the artist to proceed with her case.

More companies, artists, photographers, and others have turned to social media to promote their products and art. Further, there has been an uptick in copyright infringement and third-party "license manager" involvement in social media disputes. Counsel must understand how to protect works and mitigate risks that arise when using social media.

Listen as our authoritative panel of IP attorneys examines sublicenses and unintended sublicenses through social media and IP rights implications. The panel will discuss recent litigation that demonstrates the risks to IP rights and steps that can be taken to mitigate these risks. The panel will also discuss third-party "license managers" and their involvement in social media disputes.