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The prominence of social media in our society has led to increasing controversy and debate in a variety of legal fields, particularly in regard to privacy and rights of publicity. Recent right of publicity cases, such as Fraley v. Facebook and Rodriguez v. Instagram, demonstrate growing dissatisfaction with how social media websites utilize content created and provided by its users. However, few social media users take into consideration the copyright law ramifications of posting content to social media. Most social media terms of service require users to grant a non-exclusive, transferable, and royalty-free license of all intellectual property posted through the service to the service provider. Such licenses give social media services the ability to license this content to their affiliates, often for use in advertisements, without obtaining additional consent from the copyright holder. Moreover, the majority of social media users are likely unaware that copyright protection extends to their posted materials at all.
This Note argues that a personhood perspective of copyrighted material posted on social media provides several important insights, such as explaining why individuals use social media, recognizing the true value they place in their content, and identifying the real legal complaint behind current litigation. It builds off of traditional personhood and inalienability theories to suggest that alienability should be evaluated on a spectrum, where rights that are more personal are harder to alienate and subject to stricter judicial scrutiny. Because social media users post copyrighted content online for personal and reputational reasons, courts should seek to limit the extent to which users unknowingly waive their intellectual property rights and restrict the licenses granted to social media companies.
Introduction
In an increasingly technological and Internet-savvy world, people of all ages are generating a massive amount of content to share through social media. This content includes photographs, videos, blog posts, and other creative endeavors that users seek to share within their social networks. While the average user is probably unaware that much of this personal content falls within the realm of copyright, social media companies are well aware of this fact. Standard terms of service in the social media industry include a provision that gives the companies, as well as their affiliates, a non-exclusive, worldwide, royalty-free, and transferable license to all...