The age of the internet has precipitated rampant appropriation and copyright infringement of artist’s work, and social media giant Snapchat may be the latest offender to find itself in hot water. But unlike other social media sites like Facebook or YouTube, who count with the protection of the Digital Millennium Copyright Act (DMCA), Snapchat may be in a much more precarious position of liability. We’ll discuss why below.
Disappearing photo app Snapchat first gained momentum among the internet’s youngest social media users due to the here one minute, gone the next feature that kept teenagers out of trouble with their parents. Invented by a Stanford frat boy, many have criticized the app for the inherent danger of being able to send photos that are almost automatically untraceable. The app, in some instances, has been used to promulgate illegal or otherwise morally dubious activities. But Snapchat’s success hasn’t been affected by the criticism. Facebook famously offered the app’s founder and CEO, Evan Spiegel, $3 billion for its purchase, though Spiegel turned it down. Instead, the app has found new and inventive ways to make itself more engaging and user-friendly.
Snapchat filters started out simply enough: users would snap their photo, then swipe for different icons to dress up their snaps. Graphics illustrating the user’s location filters similar to those of Instagram, and time and date stamps were popular for a while. Then, Snapchat took the filters one step further, by creating masks that users could superimpose on their faces. This sent Snapchat’s usage rate ablaze, as users of all ages spent countless hours superimposing animal heads and flower crowns on their images and videos (yes, I admit I did it too). Snapchat has been able to profit and expand their presence through the use of these masks, often offering sponsored, branded content around major events, from deep-pocketed partners like Gatorade or the NFL. In some instances, Snapchat’s impressions have surpassed 160 million.
Some of added Snapchat filters included makeup or masks that are especially artistic in nature – graphic, Technicolor masks that only an artist could have designed. As it turns out, several artists have recently come forward alleging Snapchat has stolen their designs for use as some of the Snapchat filters. Naturally, Snapchat has not given any credit or financial reimbursement to these artists, many of whom are presumably hard at work trying to improve their social media following and monetary gains from their work. According to copyright law, stealing Snapchat filters is an infringement on these artist’s rights, as only the copyright holder of a work has the ability to license its work for distribution.
In response, Snapchat has simply stated that “the creative process sometimes involves inspiration, but it should never result in copying. We have already implemented additional layers of review for all designs. Copying other artists isn’t something we will tolerate, and we’re taking appropriate action internally with those involved.”
But could Snapchat find itself in big trouble for appropriating an artist’s work? Do these artist’s have a claim against Snapchat?
Snapchat and the DMCA
We’ve discussed in detail on Art Law Journal the impact the DMCA has had on the misappropriation of artists’ work. In most cases, we’ve outlined how the DMCA actually shields social media giants from liability where they should otherwise be held accountable.
The DMCA safe harbor criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. In addition, the DMCA designed to protect internet companies from incurring any liability if copyright infringement was found to have occurred on their website. Codified in the Online Copyright Infringement Liability Limitation Act (OCILLA) exempts internet service providers from copyright infringement liability in an effort to strike the balance between the competing interests of copyright owners and digital users.
According to OCILLA, an internet service provider is defined as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received. Under this section, the term “service provider” means a provider of online services or network access. It’s also important to note that by definition, an internet service provider is shielded from the practices its users engage in, and not necessarily the actions it takes.
In order to be protected by OCILLA, a provider must adopt and implement a policy for addressing and terminating accounts of users who are found to be “repeat infringers.” The provider must also not accommodate or interfere with “standard technical measures” – defined as measures that copyright owners use to identify or protect copyrighted works, that have been developed pursuant to a broad consensus of copyright owners and service providers. Known as the take-down notice, once an internet provider has been served with one, it is obliged to remove the content immediately.
Providers seeking protection from OCILLA must:
- not receive a financial benefit directly attributable to the infringing activity,
- not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent,
- upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
With so many impressions, it’s undisputable that Snapchat is receiving a financial benefit from stealing artist’s work, and its more than likely that they derived their ideas directly from the source. Thus, under OCILLA guidelines, Snapchat should most certainly be held accountable for its copyright infringement of artist’s work.
Snapchat’s Copyright Infringement Wasn’t Passive as Defined by OCILLA
We noted above that OCILLA protection depends on the internet providers passive complicity in the copyright infringement. For example, Snapchat couldn’t be held accountable for a user who snapped a photo of an artist’s work without the artist’s consent, just like Instagram couldn’t be sued because a user posted a photo that was an infringement of someone else’s copyright.
There’s a big difference, though, between passivity and active appropriation. In this instance, Snapchat is impermissibly stealing artist’s works and turning them into Snapchat filters for their app. OCILLA was created in order to shift the burden of policing copyright infringement away from internet service providers, who would presumably have a very difficult time trying to control user’s actions on the internet. But here, it’s Snapchat’s design team that’s doing the infringing – they’re finding images and subsequently turning them into filters.
What to Do If Snapchat Has Stolen Your Work
First and foremost, artists whose work has been made into a Snapchat filter should send a take-down notice, letting Snapchat know that you believe there’s been an infringement of your copyright. If your work is registered as a copyright, then your case will be much easier to prove. As a reminder, we always urge artists to register their work whenever possible. However, even if it’s not registered, you can still send a notice since copyright protection exists the moment a work is created.
After you’ve filed a takedown notice, you’ll want to speak with an attorney to get an assessment of how likely it is that you will be able to prove before a court that Snapchat did, in fact, steal protected elements of your copyrighted work. If there is a case, then pursuing legal action is something that should definitely be considered, seeing as Snapchat’s visibility likely resulted in hefty lost profits on your work.
While Snapchat may think it can hide behind OCILLA, stealing artist’s work is copyright infringement, and the social media giant will have to pay for its mistake.
Has Snapchat stolen your work? Tell us about it in the comments section below.