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NAVIGATING COPYRIGHT ISSUES IN SOCIAL MEDIA AND CONTENT CREATION

Introduction

In the fast-paced world of social media, creativity has never been more powerful. One viral video could make your brand or land you in legal trouble. Whether you’re posting on TikTok, Instagram, YouTube, or creating memes, it's easy to overlook the complexities of copyright. But with so much at stake, understanding intellectual property rights is crucial for every content creator, influencer, and brand

At BIK Advocates LLP, we recognize that understanding intellectual property rights, especially copyright, is essential for content creators, influencers, and brands alike. Here’s a guide to help you navigate the most common copyright issues in the content creation space.

What is Copyright and Why Does it Matter?

Copyright is a form of intellectual property that protects original works of authorship including music, writing, videos, photographs and even social media posts. From the moment a creative work is expressed in a tangible form, it is automatically protected by copyright law, no registration required (though registration can offer additional legal benefits).

Unlike trademarks which protect brand names, logos or plagiarism which involves the wrongful appropriation of someone else’s work, copyright specifically protects the expression of ideas. In Kenya, copyright law is governed by the Copyright Act of 2001 and creators are also protected by international treaties such as the Berne Convention for the Protection of Literary and Artistic Works.

The copyright owner who is the creator has exclusive rights to reproduce, distribute, perform, display and license their work. Using someone else’s content without permission can lead to serious legal consequences, even if it was done unknowingly.

Common Copyright Pitfalls on Social Media

1. Reposting Without Permission

Sharing someone else’s video, photo or graphic without proper credit or consent even with good intentions can violate copyright law and other Data Protection Laws and result in copyright infringement.

2. Music in Backgrounds or Videos

Using a trending song in a TikTok or Instagram Reel may seem like a fun, harmless way to boost engagement. However, platforms may flag your post or mute the audio if the music is unlicensed. Even if a song is trending, the lack of proper licensing can still lead to copyright violations.

3. Meme and Remix Culture

Although memes often remix or transform existing content, they are not automatically considered “fair use.” For example, a meme made from a copyrighted video clip could be challenged by the original creator, resulting in the removal of the meme from several platforms.

4. Brand Collaborations and Content Ownership

In influencer marketing, it’s essential to clearly define content ownership. Without an agreement in place, both parties may assume they hold the rights to the content, leading to confusion and potential legal disputes. Clear terms help avoid such pitfalls.

Understanding Fair Use and Creative Commons

Some exceptions allow for limited use of copyrighted material without permission. However, they are narrow:

Fair Use

Fair use allows limited use of copyrighted material without permission for specific purposes such as commentary, criticism, or parody. However, fair use isn’t a free pass. It’s assessed based on the following four-factor test:

• Purpose: Is the use for educational, commercial, or transformative purposes?
• Nature: What is the original work’s nature, factual or creative?
• Amount: How much of the work is used?
• Effect: Will it affect the market or value of the original work?

Creative Commons

Creative Commons (CC) licenses allow creators to share their work under specific terms. These licenses are a great way to legally share content while ensuring the original creator’s rights are respected. These licenses are marked with clear icons to indicate the terms of use, such as whether commercial use is allowed or if modifications are permitted.

Best Practices for Ethical Content Creation

To avoid copyright issues and ensure your content creation is legally sound, follow these best practices:

• Give Credit Where It’s Due: Always tag or mention the original creator when using their work. However, remember that 'giving credit' does not replace the need for permission or licensing.
• Seek Permission or Licensing: Secure the necessary rights for any third-party music, images, or video clips you use.
• Use Copyright-Free Resources: Rely on royalty-free music, stock images, and other cleared resources available in libraries.
• Read Platform-Specific Policies: Each social media platform has its own copyright guidelines. Familiarize yourself with these rules to stay compliant.
• Draft Clear Influencer Agreements: In collaborations, ensure you have an agreement that defines content ownership and usage rights clearly from the outset.

What If Someone Uses Your Content Without Permission?

If your content is used without permission, here's a step-by-step process to handle the situation:

1. Document the Infringement: Take screenshots, note URLs and record timestamps to gather evidence.
2. Submit a Takedown Request: Platforms like YouTube and Instagram offer tools to remove infringing content such as the DMCA takedown notice.
3. Consult Legal Experts: If the platform does not respond or the infringement persists, a cease-and-desist letter from a lawyer may be necessary to take formal action.

How We Can Help

At BIK Advocates LLP, we provide expert legal services for digital creators to protect their intellectual property. Here’s how we can assist:

• Content Licensing Agreements: Drafting and reviewing licensing agreements to ensure your content is properly protected.
• Influencer & Brand Collaboration Advice: Ensuring your partnership agreements clearly define content ownership and usage rights.
• Copyright Registration & Enforcement: Assisting with copyright registration and enforcement strategies to protect your work.
• Legal Training: Offering workshops on online IP rights to help you stay informed and avoid pitfalls.

Create Freely, but Responsibly

Creativity thrives when it is nurtured and protected. Whether you’re an aspiring content creator, an influencer, a digital agency or a small business, understanding copyright is essential.

Let your creativity shine but make sure it stands on a foundation of respect for intellectual property rights. When in doubt, talk to a legal professional to guide you through the process.

Reach out to B.I.K Advocates LLP for tailored advice on how to protect your content and avoid legal pitfalls in the digital age.