An accountant copied to his business Facebook page professional posts and advertising materials that were created and published previously by a competing accountant, while presenting the posts as his original works.
The Court held that the publication of the posts constitutes a violation of copyright law which entitles the competing accountant to statutory compensation without requirement to prove damages. A Facebook post, as well as content of an advertising nature, can become the subject of copyright whether as a literary work, as a work of art or as a combination of the two. In order to be subject to copyright, content must pass three tests: the originality test which requires the content not to be based on another’s work, the creativity test which requires a minimal element of creativity and quality, including by making unique choices in presenting information, and the work test which checks whether the creator has invested any effort, albeit minimal, in the creation of the work. Insofar as content is found to be the subject of copyright, there can be no terms of use, including those of Facebook, which allow infringement of these rights and copying of content created by another user. Here, the competing accountant invested a lot of time and effort in drafting the original posts and made various creative choices in their wording and design, a fact that makes such a creation subject to copyright. The fact that Facebook's terms of use stipulate that posting content on the platform places them in the public domain refers to the relationship between the user and Facebook and not the relationship between the users themselves and does not give any user the right to copy another user's content and present it as its own.