Does a social media post have copyright?
A social media post has copyright when the words, the photograph, the music, or the video is an original work. The right arises when the work is created. Putting the post on a platform does not make the platform the author, and the post does not need a registration certificate before the right exists.
When does the post have copyright?
Section 13 of the Copyright Act recognises copyright in an original literary, dramatic, musical, or artistic work, in a cinematograph film, and in a sound recording. A caption can be a literary work. A photograph is an artistic work. A short video can be a film. A computer program is a literary work, but a post is not a program merely because it appears on a screen.
The author is the first owner, unless the work was made in the course of employment under a contract of service and the contract gives ownership to the employer. Registration, and the 30-day wait after Form XIV, are on the copyright page. They record the claim. They do not create it.
When is someone else’s work used?
Using another person’s photograph, music, or film in a post needs a licence from the owner, or an exception in the Act. Section 52 allows fair dealing for private or personal use, for criticism or review, and for the reporting of current events, within the limits that section states. Those exceptions are not a right to repost a work because the original was already public.
A written permission from the owner is a licence. An assignment of copyright has to satisfy section 19, including that it is in writing and signed. A comment that says “feel free to share” is not that assignment.
Is a name or a hashtag copyright?
A name, a logo, or a hashtag used to tell buyers which business the goods or services come from is a trademark question, not a copyright in the phrase. Copyright does not arise in a name alone. A trademark is applied for if the business wants the register entry. Typing the phrase after a hash sign does not produce that entry, and it does not stop another person from using ordinary words.
What does posting give the platform?
The platform’s terms usually take a licence so that it can host, display, and transmit the post. That licence is a contract with the person who posts. It does not change who the author is under the Copyright Act. If the terms purport to take an assignment, the assignment still has to meet section 19. Reading the terms is the way to see which of the two the platform asked for. The Act is not replaced by the terms.
Frequently asked questions
Four questions cover registration, a repost, a hashtag, and the platform.
Must the post be registered before it is protected?
No. Copyright subsists when the original work is made. Registration records the particulars. It is not the step that creates the right.
Does fair dealing allow any repost?
No. Section 52 allows limited uses, such as criticism, review, and reporting of current events, within the conditions of that section. It is not a general permission to repost a photograph, a track, or a film.
Does a hashtag become a trademark by being typed?
No. A trademark is a mark used to distinguish goods or services. Typing a phrase after a hash sign does not register it.
Does the platform become the author?
No. The author is the person who created the work. The platform’s terms may take a licence to host and display the post. A licence is not authorship.
Sources
Copyright is the Copyright Act, 1957. A brand name is a trademark. Registration of a copyright is optional.