When Your Defense Is No Defense at All

One of my all-time favorite scenes from the sitcom “The Office” is when Michael Scott, facing financial ruin, walks out of his office and shouts at the top of his lungs to all his employees, “I. DECLARE. BANKRUPTCY!” Oscar then tries to explain that he can’t just say the word “bankruptcy” and expect anything to happen. “I didn’t say it,” Scott replies, “I declared it.”

The equivalent to this on social media seems to be using the phrase “I do not own the rights to this music” in posts containing copyrighted music. There are a number of reasons why this statement is ineffective. First, imagine stealing an apple from the grocery store, but on your way out, just after taking a big bite, yelling, “I do not own this apple!” The statement does nothing but serve as a public admission of guilt. 

In fact, if I were trying to track down people using copyrighted music without permission of the copyright holder, I would probably just run a search for the phrase “I do not own the rights …” Yet the practice of posting this phrase along with a child’s dance recital or a cute montage of family photos set to copyrighted music is so ubiquitous that you would think Mark Zuckerberg himself had issued a PSA absolving anyone from the consequences of using copyrighted music without permission, as long as they included those magic words in their post.

Except that he did not. And you are not absolved.

You see, nobody really thinks you own the rights to Disney’s “Let It Go.” It is not passing the work off as your own that infringes the copyright holder’s rights. It is posting the song without the owner’s permission that is, in fact, illegal. The same is true when posting screenshots of photographs you don’t own or even a picture of a page in a novel in order to share some pearls of wisdom from there with your Instagram followers. Without permission, it is copyright infringement, even if you disclaim credit for the work or give explicit credit to the creator.

According to U.S. copyright law, the owner of the copyrighted work has certain exclusive rights, which include the right to perform, reproduce, and distribute their work, for example. An infringer can face a range of civil and criminal penalties, including an injunction to remove the infringing content, actual damages based on the copyright owner’s lost profits, or statutory damages ranging from $750 to $150,000 per violation. In some egregious cases, infringement can even lead to imprisonment.

It’s easy to understand why people assume that giving credit is sufficient to avoid infringement. In the academic world, the primary concern for students is not copyright infringement but plagiarism. The former is a legal concern, and the latter is an ethical concern, although the two can overlap.

Copyright infringement occurs when you reproduce someone’s work without their permission, while plagiarism oc-curs when you take credit for someone’s work as your own, even if the copyrights for that work have long since expired. It is possible to give proper credit and thereby avoid plagiarism while still being guilty of copyright infringement for failing to seek permission from the copyright holder to reproduce their intellectual property.

I have not noticed any major crack-downs on these types of infringing social media posts, with or without an accompanying disclaimer. Often social media sites just mute the sound on such posts or remove them if their algorithms do catch it. However, it would be prudent to remember the lessons learned from the days of Napster and illegal music downloads. Not everyone who ever downloaded free digital music illegally ended up in court, but some stiff penalties applied for the unlucky few who did. This had the desired effect of scaring many other perpetrators into buying their digital music or subscribing to music streaming services to obtain their music legally. 

So what can you do if you want to post your child singing along to your favorite Beyonce song? You could share it without music, share it with different royalty-free music, or get permission from the copyright holders (which admittedly may be more work than a social-media post warrants). I know each of those options is a bit of a bummer, but so is getting sued for copyright infringement. And just like the futility in shouting the word bankruptcy, simply disclaiming the ownership of a copyrighted work used in your social media posts will not save you from potentially significant monetary penalties for such an infringing act.