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Posting Pictures on Social Media: Do's and Do Not's

May 21, 2020

Now more than ever before, almost everyone is online, both personally and for business purposes. There is a lot of confusion about posting pictures and images on social media - Instagram, Facebook, Pinterest and other platforms. What is legally permitted and what isn't?

DO'S:
• You can post pictures that you've taken yourself.
• You can post pictures which you have permission to post. So if your friend took a picture of both of you and sends it to you and says "post this," you have permission.
• You can post pictures or images from sites that give you explicit permission to do so. Pixabay is one such image sharing site for royalty-free images which can be used by anyone for personal or commercial purposes. There are many more free image sites (Unsplash and Pexels, for instance) but always check the terms of use: Is it free? Can I use the image for personal purposes, on my Instagram or Facebook account? For commercial purposes, on my business website or social media? Does the site require you to link back?
• If a site asks for your credit card, then check to make sure you aren't signing up for a monthly fee-based account.
• If you are being paid to take photographs, have a written contract that clearly specifies who can do what with the photographs.

DON'TS:
• You can't post pictures that aren't yours without express permission of the owner (many times, the photographer is the owner). This includes photos of celebrities or public figures, even if everyone else is doing it. You could be the one who receives the cease and desist letter and demand for licensing fees.
• If you happen to take a picture of a celebrity or public figure, you can post it as a "celebrity/public person sighting," (for example, "look who I saw at Whole Foods!!!") but not in connection with any product or service.
• Even if you acquire an image of a public figure or celebrity from Pixabay or another free site, you cannot use that image in connection with your business. Such use could be construed as an endorsement or sponsorship, which would violate the Trademark Act. If you are using the image to create an obvious parody for newsworthy purposes, then your parody may fall within the fair use exception to infringement.
• Do not drag and drop images from other people's websites or social media accounts to your own accounts: this is called copyright infringement. This is the biggest DON'T, and the subject of the image (a celebrity, public person, random stranger, landscape, consumer product) doesn't matter. DON'T DO IT UNLESS YOU HAVE EXPRESS PERMISSION IN WRITING.
• If you're looking at images on Getty Images or Shutterstock, read the terms of use. There are different uses depending on what rights you buy: only personal, only editorial, only certain kinds of commercial uses. There may also be time limits - the image can only be used for six months, for instance.

It's very easy to be swept away by the free-wheeling aspects of being online, but if you're considering posting someone else's pictures or images, be sure that you have the right to do so.

Attorney Advertising. The information contained in this Legal Alert provides a general summary of the topics covered and is not intended to be and should not be relied upon as legal advice. You should consult with your legal counsel for advice and before making legal, business or other decisions.

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Goldsmith, Amy B. Partner and Co-Chair of Intellectual Property Group Partner and Co-Chair of Intellectual Property Group 212.216.1135 VCard

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