You all heard the news, right? Last week, Taylor Swift got engaged, and the internet went WILD. The Swifties took over, and many brands found creative ways of participating in the conversation.
We particularly took the opportunity to remind people that the engagement pictures are copyrighted material. And some people did not take our little warning that well. One comment in particular caught our attention:
And, considering said comment, it may be time for us to talk about copyright.
DISCLAIMER: We are not a law firm, and this information is not intended as legal advice. Please consult with a lawyer if you have any questions.
What is Copyright?
As defined by Copyright.gov, copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are various types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and other forms of creative expression.
In the U.S., copyright law grants authors exclusive rights to reproduce their work, prepare derivative works, distribute copies, perform and display it publicly, and the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations.
Of course, as with every other rule, there are many exceptions. It is not always black and white. The complete list of exemptions to copyright protection can be found in Chapter 1 of Title 17 of the United States Code.
Why Does Copyright Matter?
Well, neither you nor we are lawyers here, and honestly, most people on the internet aren’t either. Most of us have a certain understanding of what copyright is and what constitutes commercial use, but may not have the whole picture.
Many people believe that “commercial use” only means using something and getting paid for it (for example, the one commenter we referenced at the beginning of this post). Still, the reality here is quite different: every and all content shared from a brand account is considered commercial, as it supports brand visibility, marketing goals, customer engagement, or public perception, all of which contribute to the business’s commercial objectives.
Commercial use doesn’t always mean direct profit.
Yes, selling T-shirts with Taylor Swift’s engagement photos is obviously commercial use. But so is using those same photos in a cheeky Instagram post from your brand account—even if you’re not directly making money off the post. Why? Because your brand benefits indirectly: exposure, engagement, awareness, or simply staying relevant in the cultural conversation.
So, let’s get back to that comment at the beginning of this post: understandably, the commenter is frustrated because the standard definition of “commercial” in our daily lives is indeed “to make money.” However, in the context of copyright and intellectual property law, the definition is significantly broader. The key question isn’t just “Did you make money directly from this?” but rather “Did you use this copyrighted work in a way that benefits your business or organization, directly or indirectly?”
If the answer is yes, it’s almost certainly a commercial use.
Even if you don’t link the image directly to a product for sale, you are using it to further your business objectives. This indirect benefit is what transforms a seemingly “innocent” social media post into a commercial use.
So, What Isn’t Commercial Use?
This is where the concept of “Fair Use” and the exceptions in Chapter 1 of Title 17 of the United States Code often come into play. “Fair Use” permits limited use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without having to ask for permission or pay for a license. The key here is transformative and non-commercial purpose. For example:
- A news outlet reporting on Taylor Swift’s engagement and using the image to illustrate the story is likely to be considered Fair Use (news reporting).
- A critic or commentator using a small portion of an image in a video essay to analyze the photography style is likely to be considered Fair Use (criticism/comment).
- An individual sharing an image on their personal, non-branded social media account to express excitement for a celebrity is typically using it for personal purposes, not commercially.
The line between Fair Use and infringement is famously fuzzy and is decided on a case-by-case basis in court, considering factors such as the purpose of the use and the amount of the work used. But for a brand, the safe assumption is always that your use is commercial.
Why Do Brands Need to Be Extra Careful About Copyright?
When you operate as a business, the stakes are higher. A personal account posting a meme might fly under the radar, but a brand account is held to a higher standard. Copyright holders (photographers, musicians, publishers, etc.) are more likely to notice and enforce their rights when businesses are involved.
Yes, there is a chance that nobody will bat an eye, and you might go unharmed—or, as our friend in the comment said, you will see no warning—but there is also a chance that you could get in legal trouble. And here’s the key: ignorance isn’t a defense. Even if you didn’t intend to infringe on copyright, you’re still responsible for how your brand utilizes content.
On the bright side, this does not mean you have to sit out of trending conversations and stay silent while history is being made. Here are some copyright-friendly ways to participate without the risk of your content being taken down (or worse):
- Create original graphic content inspired by the trend, not copied directly. Use your own assets, such as a photo of your team celebrating, or create graphics with your own logos, products, and brand colors. Poppi’s Instagram Post is a great example of this.
- Use licensed stock photography, videos, or music (there are plenty of great resources).
- Work directly with creators—buy or license their content for your campaign.
- Create Text-Based Content inspired by the trend. Comment with a clever caption or a fun brand-related pun. You can discuss the news without reproducing the protected image itself.
- Lean into commentary or parody (within reason and depending on context, this can sometimes fall under fair use, but it’s a very gray area).
As a special note, you can leverage User-Generated Content (UGC), but please ensure that when reposting a customer’s photo, you always obtain explicit permission to do so. Even if they tagged you, they likely haven’t granted you a commercial license to use their content, plus it is always better to be safe than sorry.
We get it, it’s tempting to share everything that captures our attention. But for brands, that impulse comes with legal responsibility. When in doubt, remember: if you’re posting from a business account, you’re almost always posting for a commercial purpose.
Creating original content isn’t just the safest legal path—it’s also the best way to build a unique and authentic brand voice that stands out from the crowd. It’s all about being intentional: participate in the conversation, but do it without borrowing someone else’s work in a way that puts your brand at risk.
