Social media and the law—a warning for brands and content creators

What Jimmy Kimmel likely thought would be a harmless prank on another public figure resulted in a lawsuit from George Santos. The former congressman alleges Kimmel used pseudonyms to obtain Cameo videos created by Santos and then displayed them on national TV without Santos’ consent and in violation of Cameo’s terms of service. Santos alleges copyright infringement, fraudulent inducement, breach of contract and unjust enrichment seeking more than $750,000 in damages. While it is unclear how this will end, the situation provides a reminder of the legal risks of social media. Every social media platform has its own terms of service (TOS) which govern what users can do on the platform. And while many people consent to TOS while not actually reading them, each platform’s terms vary with respect to legal issues such as copyright ownership and infringement, and the extent to which the content may be used on the platform. TOS seek to limit the platform’s liability for user behavior and to shift liability to the users. Most platforms attempt to avoid being the arbiter of disputes and oblige users to police their own content. Savvy content creators must monitor their use of social media, especially when engaged in activity across multiple social media platforms. Check out the latest Ad Age events and award programs ‘Trending’ doesn't mean ‘legal’ Many lawsuits filed by intellectual property owners end in settlement. Unless a judge has issued a ruling, it is not clear how TOS would be interpreted in a court of law. This can cause social media trends to appear lawful when they are not. For example, many content creators post videos that include songs or snippets of songs. Record labels are suing these content creators, alleging improper use of unlicensed music in a commercial context. In November 2023, Sony Music Entertainment filed a lawsuit against OFRA Cosmetics for its use of unlicensed songs in more than 300 posts on Instagram and TikTok. Platforms such as Instagram actually appear to promote copyright infringement by offering users catalogs of music they can add to their content. In fact, users may not have the legal right to use that music if it is a commercial post. Just because a feature exists does not protect the content creator from liability if the feature is used unlawfully. Personal vs. commercial use Many platforms’ TOS differentiate between “personal use” and “business/commercial use.” There may be no clear definition of that distinction, however, and no direction as to what a content creator/user is allowed or not allowed to do on a platform. Worse, definitions vary by platform. For example, it’s much clearer on a site such as Cameo (where a business account won’t make a video until getting paid) than on Instagram (where a seemingly innocuous post could be a product advertisement). To date, the validity of Cameo’s TOS permitting the use of content beyond personal use has not been decided by a court. It is also not clear if compliance with, or a breach of, Cameo’s TOS might result in liability to Jimmy Kimmel or users like him. Further complicating these issues is that many content owners tolerate some degree of infringement and may engage in selective enforcement of their rights. This can give content creators the mistaken belief that all social media posts using the same or similar content are lawful. Just because a prior image or meme is already on a social media platform, does not mean that it is in the public domain or free to use. In addition, it is difficult to tell whether the original person posting the content to a platform had the right to do so. While a platform’s TOS may permit personal users to repost, reposting content for a commercial purpose may not be legal. Presumably, Santos would not have sued Kimmel if Kimmel used the videos only for his personal enjoyment and did not reuse them on his show. Rights of publicity Content creators should also be cognizant of rights of publicity that govern the commercial exploitation of a person’s name, image and likeness. As there is no federal right of publicity, these rights exist on a state-by-state basis. Generally, there is no fair use defense for using a person's image for a commercial purpose such as an advertisement. If such a post contains an image of a person, the content creator should obtain permission to use that person’s image. Drugstore chain Duane Reade learned this lesson when its Twitter/X account reposted a photograph of Katherine Heigl shopping at the store with the caption “Even @KatieHeigl can’t resist shopping at #NYC’s favorite drugstore.” Heigl sued for $6 million, but the parties settled for an undisclosed sum with Heigl donating the money to charity. Even using a lookalike in an advertisement could lead to a right of publicity claim. Ariana Grande sued fast fashion store Forever 21 for posting images of a strikingly similar-looking model in its social media campaign. See all of Ad Age’s 2024 Creativity Award winners here Cross-platform and off-platform use Once a brand removes content from a platform’s ecosystem, that use is no longer subject to that platform’s licensing structure. Just because content can be posted, reposted or remixed within one platform’s ecosystem, does not mean brands can use the same content on another platform or off-platform. For example, if a brand reposts a third-party video on Instagram and then wants to put that content on TikTok, it may not have the legal right to upload that content to TikTok. Moreover, just because content exists on a social media platform does not mean a brand can take that content and use it offline. For example, several news agencies were hit with a $1.2 million judgment for copyright infringement when they took photos from a Twitter feed and used them in newspapers. Off-platform use is likely to be a central issue in the Kimmel/Santos case. Santos alleges that Kimmel’s off-platform use of his videos constituted a commercial use, and consequently, the videos were no longer subject to Cameo’s TOS license. Interestingly, Santos has not sued other news organizations for showing clips of his Cameo posts, likely because such uses fall under the fair use exception for news reporting. Kimmel's April 29, 2024 motion to dismiss argues that fair use bars Santos’ claims because of Kimmel’s “highly transformative” use of the videos. Kimmel further argues his use falls under the fair use doctrine as Santos’ videos are minimally creative, that using entire videos was necessary to effectuate Kimmel’s comedic segment, and that Kimmel’s use did not affect the videos’ value. Implications for content creators and brands Considering the expanding use of social media, growing number of social media platforms, constant platform updates, artificial intelligence and data privacy considerations, it is important for content creators and brands to weigh legal risks when creating content. In addition to seeking legal advice, make sure to review each social media platform’s TOS to determine whether your content complies with the policy. While it remains to be seen who will prevail in the Santos-Kimmel dispute, cross-platform social media engagement isn’t going away any time soon. 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Social media and the law—a warning for brands and content creators

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