Despite those that believe that ‘the Internet wants to be free’, the U.S. Constitution gives anyone who captures a video or photo exclusive rights to control its use – how, when, where and for how much. But to get that control when you post on social media you need to do more – you need to add a watermark and not share as ‘public.’
Many free services help you put a watermark on any image file, so why don’t more people use them? In a word – marketing. A decade of Facebook, YouTube, and countless others encouraging users to post everything publicly and never-you-mind-how-much-money-we-make-from-it.
Watermarks – those opaque logos and copyright notices at the bottom of photos and videos – are a necessary and simple solution. They put everyone on notice that rights have not been waived, tell them who is the owner, and trigger protections under the Copyright Act and the Digital Millennium Copyright Act. The DMCA provides for stiff penalties for removing “Rights Management Information” – which includes removing watermarks. Remedies range from $2,500 to $25,000 per use. Go viral and you could go into retirement! (OK, so not really since not many infringers can pay the license – but still!)
And then by posting that watermarked image to ‘friends of friends’ on Facebook or making it ‘non-embeddable’ on YouTube, you put everyone on notice that use outside of sharing within the service requires your permission. Even if others may share ‘public’, you have not given any rights away. BuzzFeed taking your video and selling ads against it, or a news publisher replying it without your permission is an unlicensed copyright use and could be a DMCA violation. (And no, ‘fair use’ does not mean anything can be used freely for news – it is much more narrow than that as all reputable newsrooms will tell you.)
Statistically, posting to ‘friends of friends’ can organically reach over 150,000 Facebook users, about the same as posting ‘public’ since neither route guarantees that your post will be placed in anyone’s news feed (the bots decide that). So if your video should go viral, it will just as easily as if you posted ‘public’.
By watermarking and posting other than ‘public’, you will avoid giving social media platforms broad rights, and will let your best video or photo still be seen far from being copied and wide but keeping you in control of how, when, where, and for how much.
Christopher Borders is a San Francisco bay area lawyer for early stage companies and co-founder of NowArchive, a marketplace for licensing newsworthy videos and photos.