Can You Sue Someone for Copying Your Social Media Post?

What rights does copyright give you in a social media post?

An original post is protected by copyright from the moment it is created and saved, and you hold the exclusive rights to copy it, adapt it, and display it publicly. Under 17 U.S.C. § 102(a), “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression.” A photo, video, graphic, or written post saved on a platform’s servers meets the fixation part of that test.

The bar for “original” is low. In Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), a case about telephone directory listings, the U.S. Supreme Court explained that original “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” The Court added, “To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice.” It also noted that “There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”

Under 37 C.F.R. § 202.1(a), a Copyright Office regulation governing registration, “Words and short phrases such as names, titles, and slogans” are among the “examples of works not subject to copyright and applications for registration of such works cannot be entertained.”

Subject to the exceptions in sections 107 through 122, 17 U.S.C. § 106 gives the owner “the exclusive rights to do and to authorize” listed acts, including “to reproduce the copyrighted work in copies,” “to prepare derivative works based upon the copyrighted work,” and “to display the copyrighted work publicly.” Downloading your photo and posting it again uses those rights. What copyright does not protect is the idea behind the post: under § 102(b), protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” A competitor who copies your promotion idea in its own words and images has taken an idea, a point covered in more depth in whether a concept can be copyrighted.

How does ownership work when an employee or contractor made the post?

A post an employee creates as part of the job belongs to the company, while a post a freelancer creates belongs to the freelancer unless a signed writing transfers it. That matters because only the owner can enforce the copyright. Under 17 U.S.C. § 201, copyright “vests initially in the author or authors of the work.” For a “work made for hire,” the employer “is considered the author” and “owns all of the rights comprised in the copyright” unless the parties agreed otherwise in a signed writing.

17 U.S.C. § 101 defines a work made for hire in two ways. The first is “a work prepared by an employee within the scope of his or her employment.” The second covers certain commissioned works in listed categories, and only “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” A freelancer’s photo shoot for your feed does not become yours just because you paid for it. Under 17 U.S.C. § 204(a), a transfer of copyright ownership, other than by operation of law, “is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.”

Ownership controls who may sue. Under 17 U.S.C. § 501(b), “The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action.” I suggest confirming who created the post and what agreement covers it before you send any notice, because a notice from someone who does not own the copyright invites a challenge. The contract side is covered in work-for-hire and IP assignment for Minnesota businesses, and account control is a separate question from content ownership, covered in who owns the company’s social media accounts.

When does copying a post count as fair use?

Copying is fair use, and not infringement, when a court weighing the four factors in 17 U.S.C. § 107 finds in favor of the person who copied. When a business reposts your content for the same commercial purpose your post served, the first factor is likely to weigh against it, absent some other justification for copying, under the Supreme Court’s 2023 decision discussed below. The statute lists purposes “such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” and directs courts to weigh four factors:

1. “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the work as a whole; and
4. “the effect of the use upon the potential market for or value of the copyrighted work.”

The U.S. Supreme Court addressed the first factor in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). The Court held that when an original work and a later use “share the same or highly similar purposes, and the secondary use is of a commercial nature,” the first factor is likely to weigh against fair use absent some other justification. The Court limited its analysis to that factor and to the specific use before it, a commercial magazine license, and it explained that “The same copying may be fair when used for one purpose but not another.” A news outlet quoting your post to report on it stands in a different position from a competitor using your photo in its own ad. More on the factors is in fair use.

How does a takedown notice to the platform work?

A takedown notice is a written notice to the platform’s designated agent that identifies your work and the copy and includes a good faith statement and a statement under penalty of perjury, and a platform that wants to keep its protection from liability must act on a complete notice. Under 17 U.S.C. § 512(c)(1)(C), a platform keeps that protection, called a safe harbor, only if, among other conditions, it, “upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.” The safe harbor is the platform’s protection from liability; the statute does not give you a claim against a platform that declines.

Section 512(c)(3)(A) says the notice “must be a written communication provided to the designated agent of a service provider that includes substantially the following”:

• a physical or electronic signature of a person authorized to act for the owner;
• identification of the copyrighted work;
• identification of the copy and information reasonably sufficient for the platform to locate it;
• your contact information;
• “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and
• “A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

Section 512(c)(2) requires the Register of Copyrights to “maintain a current directory of agents available to the public.” A sample letter is in the copyright infringement notice template.

The notice carries risk if it is wrong. Under § 512(f), “Any person who knowingly materially misrepresents under this section” that material is infringing “shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer” and others injured when the platform relies on the misrepresentation. I suggest weighing fair use and confirming ownership before you sign, because the good-faith statement covers whether the use is authorized “by the copyright owner, its agent, or the law.”

Why does registration matter before you can sue?

With narrow exceptions, you cannot file a copyright lawsuit over a U.S. work until the Copyright Office registers it, and the timing of registration decides whether statutory damages and attorney’s fees are available. Under 17 U.S.C. § 411(a), “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” If the Office refuses, the same subsection provides that “where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights.”

In Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019), a news organization sued a former licensee that kept displaying its articles online, and the suit was dismissed because the Register had not yet acted on the applications. The U.S. Supreme Court held that “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright.” Filing the application is not enough. The Court then explained that upon registration, “a copyright owner can recover” “for infringement that occurred both before and after registration.”

What you can recover depends on when you registered. 17 U.S.C. § 412 provides that “no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for” “any infringement of copyright in an unpublished work commenced before the effective date of its registration,” or “any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” I suggest checking the current text of § 412 before relying on that window. Whether a social media post counts as “published” can be disputed, because § 101 says “A public performance or display of a work does not of itself constitute publication.” The video at the top of this page describes statutory damages without this timing limit; the § 412 limit controls.

For a business that posts content it values, such as product photography or video, I suggest registering that content routinely rather than after a copy appears, because early registration preserves the statutory damages and fees that make a claim worth pursuing. The case for that habit is laid out in why registration matters.

What can you recover in a federal copyright lawsuit?

A copyright owner who wins can get an injunction, either actual damages and the copier’s profits or statutory damages, and possibly attorney’s fees. Under § 412, though, “no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for” the pre-registration infringement that section describes, as the registration section above explains. The case must be brought in federal court. Under 28 U.S.C. § 1338(a), “No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.” For a case filed in Minnesota, that court is the U.S. District Court for the District of Minnesota.

The remedies are:

• An injunction. Under 17 U.S.C. § 502(a), a court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.”
• Actual damages and profits. Under 17 U.S.C. § 504, an infringer is liable for “the copyright owner’s actual damages and any additional profits of the infringer.” For a copied post, those numbers can be small or hard to prove.
• Statutory damages instead. If § 412 allows them, the owner may elect statutory damages per work “in a sum of not less than $750 or more than $30,000 as the court considers just.” For willful infringement, “the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.” For an innocent infringer, the court “may reduce the award of statutory damages to a sum of not less than $200.”
• Fees and costs. Under 17 U.S.C. § 505, “the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” The award is discretionary, and it can run against a losing owner as well.

A separate federal claim applies when the copier removes your name, watermark, or copyright notice. Under 17 U.S.C. § 1202(b), no person may, “without the authority of the copyright owner or the law,” “intentionally remove or alter any copyright management information” such as an author’s name. The civil ban applies when the person acts “knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement” of your copyright. Under 17 U.S.C. § 1203, a person injured by that violation may sue in federal court and recover actual damages and profits or, instead, statutory damages. On the statutory option, “a complaining party may elect to recover an award of statutory damages for each violation of section 1202 in the sum of not less than $2,500 or more than $25,000” at any time before final judgment. Federal law also sets a limitations period for civil copyright claims in 17 U.S.C. § 507(b), and I suggest checking it as soon as you find the copy, because § 411(a) bars an infringement suit until registration has been made, except where registration has been refused.

How does the Copyright Claims Board handle smaller claims?

The Copyright Claims Board is a federal tribunal inside the Copyright Office for smaller copyright claims, with capped damages, each side paying its own attorney fees, and participation the respondent can decline. Under 17 U.S.C. § 1502(a), it serves “as an alternative forum in which parties may voluntarily seek to resolve certain copyright claims regarding any category of copyrighted work, as provided in this chapter.” I suggest considering it where a federal lawsuit would cost more than the claim is worth, because each side generally bears its own attorney fees there. Under 17 U.S.C. § 1504(d), claims “are not subject to determination by the Copyright Claims Board” if they are “by or against a Federal or State governmental entity” or “asserted against a person or entity residing outside of the United States, except in a case in which the person or entity initiated the proceeding before the Copyright Claims Board and is subject to counterclaims under this chapter.”

The limits, from 17 U.S.C. § 1504(e), are these:

• For works timely registered under § 412, “the statutory damages may not exceed $15,000 for each work infringed.”
• For works not timely registered, “statutory damages may not exceed $7,500 per work infringed, or a total of $15,000 in any 1 proceeding.”
• A party “may not seek or recover in that proceeding a total monetary recovery that exceeds the sum of $30,000,” exclusive of fees and costs awarded for bad faith conduct.
• Except for bad faith conduct, “the parties to proceedings before the Copyright Claims Board shall bear their own attorneys’ fees and costs.”

The Board has its own time limit. Under 17 U.S.C. § 1504(b)(1), “A proceeding may not be maintained before the Copyright Claims Board unless the proceeding is commenced, in accordance with section 1506(e), before the Copyright Claims Board not later than 3 years after the claim accrued.” I suggest checking the current text of § 1504(b) before relying on that period.

You do not have to wait for the registration certificate to file. Under 17 U.S.C. § 1505(a), a claim may proceed once “the legal or beneficial owner of the copyright has first delivered a completed application, a deposit, and the required fee for registration,” and a certificate has been issued or not refused. Under § 1505(b), “the Copyright Claims Board may not render a determination in the proceeding until” a certificate has issued and been submitted. The respondent can also decline to take part: under 17 U.S.C. § 1506(i), a properly served respondent “shall have a period of 60 days, beginning on the date of service,” to opt out, and “If the respondent opts out of the proceeding during that 60-day period, the proceeding shall be dismissed without prejudice, except that, in exceptional circumstances and upon written notice to the claimant, the Copyright Claims Board may extend that 60-day period in the interests of justice.” If the copier opts out, the court route stays open: § 1504(a) provides that “the right of any party to instead pursue a claim, counterclaim, or defense in a district court of the United States, any other court, or any other forum, and to seek a jury trial, shall be preserved.”

What does Minnesota law add when someone copies your post?

Minnesota cannot give you a second copyright claim, but Minnesota law reaches what the copier does beyond copying, such as using your content to misrepresent its own goods or services to customers or using a person’s likeness to promote itself. Under 17 U.S.C. § 301(a), rights equivalent to copyright “are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” Section 301(b)(3) preserves state claims for “activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright.”

Two Minnesota claims can fit a copied post:

1. Deceptive trade practices. Under Minn. Stat. § 325D.44, subd. 1, “A person engages in a deceptive trade practice when, in the course of business, vocation, or occupation, the person” “represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have.” A competitor that posts your customer photos as its own completed projects may fit that clause. Under subd. 2, “a complainant need not prove competition between the parties or actual confusion or misunderstanding.”
2. Appropriation of name or likeness. In Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998), the Minnesota Supreme Court recognized the appropriation tort, which “protects an individual’s identity and is committed when one “appropriates to his own use or benefit the name or likeness of another.”” The court decided the case on a motion to dismiss, about a private photograph store employees copied and circulated, without reaching the merits. A business that reposts a video of you or your employees to promote itself may raise this claim for the people shown.

The deceptive trade practices remedy is mainly an injunction. Under Minn. Stat. § 325D.45, subd. 1, “A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable.” The same subdivision limits relief for copying: “Relief granted for the copying of an article shall be limited to the prevention of confusion or misunderstanding as to source.” Under subd. 2, the court may award attorney fees to the prevailing party if “the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive.” Under subd. 3, this relief “is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.”

A Minnesota unfair competition claim can be heard in federal court alongside the copyright claim. Under 28 U.S.C. § 1338(b), federal courts “shall have original jurisdiction of any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, plant variety protection or trademark laws.”

How do you decide which step fits the copy?

The step should match what the copy costs you and what the copier can pay. A takedown fits a one-off repost, a demand letter or, for a claim § 1504(d) does not exclude, the Copyright Claims Board fits a modest commercial use, and federal court fits a competitor whose use is hurting your business and who can pay a judgment. My advice to business owners on this decision turns on the economics as much as the law.

In my experience, litigating a copyright case in federal court typically costs far more than $30,000, which is the top of the ordinary statutory damages range for one work. A judgment also has to be collected, which can mean more attorney time spent on garnishments and bank levies. The copyright claims I have brought for clients have typically been against a competitor, and typically one with the money to pay. In those cases the goal is usually to stop the competitor from using the content, and the money is secondary.

A practical sequence for a business owner:

1. Preserve the evidence. I suggest saving screenshots of the copy showing the account name, date, and web address, plus your original with its posting date, because a copier can delete the post once it hears from you.
2. Confirm ownership under the rules above.
3. Send the takedown notice when removal is all you need.
4. Register the content before any infringement suit, because under § 411(a) “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.”
5. Send a demand letter when the copier is a business that profited. Whether to send a cease and desist letter first is a judgment about the copier and the stakes. A negotiated payment is typically less than a court could award, because both sides discount for the cost of getting there, as explained in settling a copyright infringement claim.
6. Choose the forum for damages: the Copyright Claims Board for a smaller claim that § 1504(d) does not exclude, or federal court for a larger one.

Next Steps After Someone Copies Your Post

If you own the copyright in an original post, as its author or, for “a work prepared by an employee within the scope of his or her employment,” as the employer, you control copies of it, subject to fair use, and federal law supplies the remedies: a platform takedown, the Copyright Claims Board, or a federal lawsuit after registration. Minnesota law adds deceptive trade practices and appropriation claims when the copier uses your content to misrepresent its own goods or services or uses a person’s likeness. I suggest preserving the evidence and confirming ownership first, because the later steps depend on both. Related questions on registration, licensing, and enforcement are collected on the copyright practice page.

If you would like me to look at a copied post and tell you which of these steps fits it, email [email protected] with a brief description of what was copied, who copied it, and where it appeared.