DISCLAIMER: The below is not intended as legal advice or counsel and should not be followed as such. If you have an intellectual property law issue, consult with an attorney because this blog post does qualify as legal representation and is written for informational and entertainment purposes only.
I’ve seen it time and again. A hashtag or tweet goes viral, white people start making money off of it, and a Black person pops up to say “Hey, I did that first! Where’s my credit?” Then I sigh deeply, and make this face:
It’s true that most people have no legal training. But I didn’t think you needed to go to law school to understand that if you get a product or service for free, YOU are what’s for sale. So that means: Snapchat owns your snaps. Instagram owns your ‘grams. Twitter owns your tweets. Facebook owns your statuses, photos, videos, messages, and whatever else you put on there. There’s also this neat thing called “the public domain”. Anything that isn’t copyrighted is part of the public domain, and can be used by anyone, whether or not they give you credit.
Not everything can be protected under intellectual property, and there are three different layers. A copyright protects the original expression of an artistic work, e.g. a book. A trademark protects a brand name and accompanying logos. Both “Coca-Cola”,and the cursive script it’s written in are trademarks. Patents protect physical inventions that make the required “innovative leap” from already existing devices.
So how does this apply to social media. Hashtags are not copyrightable because they don’t qualify as an artistic work. A poem in your Facebook status could be copyrighted, however. Hashtags can be trademarked, but only if you’re using them to sell goods as part of a business (ie, coffee mugs or t-shirts). The business part is important, because that’s what tripped up the creator of #BlackGirlMagic. (In my opinion, the fact that her shirts said “Black girls are…magic!” rather than #BlackGirlMagic is also part of it).
Even if you have a trademark, you can’t stop other people from using the hashtag in their tweets. For instance, a Black woman came up with the “Me Too” sexual assault awareness campaign ten years ago. She wrote a blog post about but didn’t get the credit. In my opinion, she has no right to be mad. If she had a website or a nonprofit called “Me Too”, then fine. But social media has a very short half life. When I googled”me too sexual assault”, Ms. Burke’s blog wasn’t even on the first page of my Google results (and let’s be real, nobody goes past the first page unless it’s for a school assignment). Get your SEO search together and hush. Some things you have to be okay with not getting credit for. There’s so much information out there that you’re basically shouting into a void unless you take proactive steps to stand out.
Ideas are a dime a dozen. The money is all in the execution. If your tweet goes viral on social media, your best bet is to go write a buy the website domain name, blog about it, and start selling something with your hashtag on it. (Shout out to the women who came up with #BlackLivesMatter and started an actual foundation.) Otherwise, a random white person will swoop in and start profiting off of it. Black Twitter hasn’t been just us since about 2013 so conduct yourselves accordingly. Otherwise you’re going to be scrolling through your timeline and see an ad with the hashtag you wrote on it going, “Hey! I thought of that!”