Due to social media, the dissemination of videos with all kinds of characteristics has been made much easier. Something is always trending and in a matter of minutes because all it takes is a single share button. Viral videos have brought to us certain phrases, granted us reaction videos of mundane activities such as laughing, grunting, staring, you name it. These often seconds-ling videos, due to their popularity are very tempting for use by brands or verified social media accounts. The not so few times that a brand has used such a video to hype its products, the comment sections have been filled with people urging the owner of the video to demand for compensation.

Are brands legally required to compensate such persons in those circumstances?

The answer is not definite as the courts interpret situations depending on contexts. However, as a general answer, ‘yes’ would be most appropriate. This is especially where the video was used in a way as to advertise a product and without the consent of the video maker. While it is completely normal for ordinary social media users to repost, retweet and remake videos, this, in most cases, does not result in economic benefits for them. Additionally, these individual’s pockets may not run deep enough for the owner to actually consider legal action against them. For brands however, or persons with significant influence online, otherwise termed as verified social media accounts, their sharing or retweeting of such videos generally reach a significantly higher number of persons and boosts their own popularity which may result in economic gain.

The Law.

In Kenya, the Copyright Act governs all matters copyright. Section 22 (1)(d) of the Act recognizes audio-visual works as being eligible for copyright. A social media video can be defined as a video media that is uploaded onto a social media platform. Social media videos can be classified as audio-visual works despite having a digital format because they are affixated and their creation involved application of skill and labour. Consequently, the owners of these videos are entitled to have exclusive control over them.[1] A copyright infringer is a person who uses another person’s work in order to derive some commercial benefit. For instance, when a blogger or a brand uses a content creator’s video for their own purposes the role of intellectual property rights becomes more apparent as the use has a commercial nature.

Viral videos as a concept is a recent occurrence in comparison to intellectual property rights and it is therefore a daunting task to establish the application of ‘traditional intellectual property laws’ to them. Generally, it is considered that an owner of a viral video does not surrender their rights over the content  just because they uploaded their work on any social media or file-sharing platform.

The viral element of social media makes it enticing for businesses to market products and services because of its ‘dynamic nature and ability to reach and message global audiences across many social media apps and channels’ and in a shorter span of time. For as long as social media video content comes with ‘monetization opportunities’, it will not cease to exist. As a pool of advertising opens when a video is viral, it creates the opportunity for creators of social media videos to generate profit from their work.

The temptation to ride on the band wagon of a trending video may seem almost irresistible as the video already appears to be out there for the whole world to see and just so happens to align with a product we want to increase the hype on. This is a dangerous path to go on particularly for well-established brands. Adequate care should be taken by brands to protect themselves from claims of intellectual property infringement by original content creators. Steps such as obtaining consent and providing release agreements to be signed by the creators with terms that explicitly provide how compensation will be made for such would be appropriate. This compensation can be monetary or non-monetary depending on the parties’ agreement.

It is an undeniable fact that, central to all social media platforms, is the ability for a user to post original content.[2] It is also well established that claims of copyright violation can arise from a wide range of things. The law however, provides for a number of exceptions such as using copyrighted works for: scientific research, private use, criticism or review and reporting of current events while acknowledging the source.[3]

Under section 26 of the Copyright Act, fair dealing is strictly evaluated based on the terms of the specified uses outlined by it. Accordingly, in seeking to establish whether a defense of fair dealing is valid, the courts considers a number of questions such as: whether the work is amenable to copyright protection in Kenya; when in the affirmative, whether the use of the work falls under the uses listed under section 26 and finally, whether the use of the work is fair, which is a question that requires a contextual interpretation.

As a private right, enforcement of copyright is a legal process which depends on its holders. As the cost of enforcing these rights in both monetary terms and time wise is high, where the costs are disproportionate to the benefits, the owners opt not to pursue the matter. This inaction is most likely where the infringers are small businesses or personal accounts. While, the infringement may not always be fought, it nevertheless remains crucial to exercise caution when using other people’s content for marketing purposes without their consent. Simple acts such as acknowledging the source or exclusively sharing works already in the public domain would go a long way in protecting yourself or brand from copyright claims.

Bottom line.

It is worth remembering at all times the mere presence of a video online and the fact that it has been reposted time and again, does not mean that the owner has relinquished their rights over it. Furthermore, even where there are exceptions and limitations to copyright infringement claims, it must be in good faith and the owner must at all times be credited and acknowledged. It goes without saying, that whenever someone puts in their time and effort to make content and an outsider uses it for gain, it would only be fair to compensate the content creator.

[1] Section 26(1), Copyright Act (Act No 12 of 2001).

[2] Garcia R, Hoffmeister T, Social media law in a nutshell West Academic Publishing, Minnesota, 2017, 4.

[3] Section 26(1), Copyright Act (Act No 12 of 2001).

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