Why social media content may not get copyright or trademark

Je suis Charlie is a slogan that was adopted by supporters of freedom of speech and media after killings at the offices of French satirical newspaper Charlie Hebdo.

It trended on Facebook and Twitter. This article is not going into that particular slogan. However, this slogan and many similar ones raise new legal issues for practitioners. In the era of social media, a lot of events that shape global history end up trending.

The Malaysian plane crash also trended. The advent of social media raises some concerns for intellectual property practitioners. For example, can there be any intellectual property right accorded to a social media user over a slogan that goes viral?

The two types of IP that would apply to social media users is copyright and trademarks. The former would protect photos, videos, notes, poems and other literally works while trademarks would protect slogans such as the one above.

Facebook, Twitter, Youtube and Instagram – the main social media tools – each has their own separate terms of use, including intellectual property.

Can you claim copyright over an Instagram photo or YouTube video? This largely depends on the terms of use you subscribed to when you opened your user account. This is why it is good to go through them. What about Twitter, can you claim a trademark protection for a slogan that ends up trending?

There are divergent views among practitioners. Some argue that according to the law, you can get IP protection so long as you meet the threshold while others say you cannot protect social media content.

I think it is impractical to seek IP protection over social media content save in exceptional cases. The reason is trending topics change almost overnight, people move on to new things.

Seeking a trademark over a Twitter slogan is as impractical as a newspaper seeking to trademark each and every of its headlines. Secondly, the doctrine of fair use would defeat any IP action over social media content.

The very nature of social media allows people to use your content as per your privacy settings. People can post, comment, share or retweet your content. By subscribing to the terms of use, you are stopped from denying fair use.

Lastly, facts are not protectable under IP and furthermore, social media content must be original. While social media content can be protected theoretically, it isn’t practical.

One company from Melbourne sought to protect the slogan ‘Je suis Charlie’ a few days after the killing. Other than being offensive, the timing of the application was insensitive to families of the victims.

Well, it appears it was not the first one to seek a trademark surrounding a tragic event. Australia IP office was criticised for allowing an MH17 trademark application shortly after the plane mishap.

I do not know why anyone would seek to protect a mark of a tragic event. In Kenya, would it be plausible for a person to register a mark such as Westgate, Mpeketoni or bomb blast? These names are associated with tragedies.

Can one seek IP protection for a trademark bearing the name of a traded slogan during or after a mishap? Such marks are not protectable because they are not distinctive. The name is already in the public domain and in some cases even becomes officially recognisable as a word.

The word ‘bootylicious’ is now in the dictionary due to its widespread usage to describe how some women look. Therefore, nobody can seek monopoly over that word.

Furthermore, such an application should be denied on grounds of offence. Offensive trademarks cannot be registered on account of security and public laws.

Mputhia is the founder of C.M Advocates. [email protected]; Twitter: @cm_advocates