Businesses, more than ever, have an increased focus on social media and other online marketing. But, by advertising online, companies may be allowing others to use their content without consent.

When you post online, the content is very likely to be subject to a license with the online platform provider. Such a license may give third parties the right to use that content as soon as it is posted.

For example, under its terms of use, Instagram has the right to use publicly posted content until the content or the account of the user that posted the content is deleted. If your content is shared or reposted, it may be difficult (if not impossible) to fully delete access to such content, potentially allowing Instagram, and third parties, free use of your prior posts without your consent.

This was the issue in a recent federal court case in which an author’s copyright claims were initially dismissed because the court found the author had agreed to Instagram’s terms of use when the content was initially posted publicly. In turn, according to the court, the author granted Instagram the right to sub-license the author’s posted content to third parties for use as embedded, linked content, which effectively allows third parties to use such content on their own website so long as it is done with embedded code provided through Instagram. The result: The author’s content was allowed to be posted on websites other than Instagram over the author’s objection.

Since the initial dismissal, these circumstances have become more confusing. First, Instagram clarified that it believes its terms of use do not grant such a sub-license, despite the fact that the broad language of its terms of use suggested otherwise. Then, a separate court ruled that Instagram’s terms of use do not grant such a broad sub-license to third parties. Finally, the original court above reconsidered its initial dismissal and allowed the case to move forward, which resulted in a private settlement and dismissal earlier this year.

What does this mean for companies when marketing through online platforms? Unfortunately, more uncertainty concerning the overlay of copyright and social media. As a result, businesses should consider their “public” posts and think carefully about what is shared through social media to avoid future disputes in what remains a complicated legal space.

This article appeared in the March 18, 2021, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.