If you’re to believe Agence France-Press – and many journalists who I’ve personally met – “regular people” don’t have the same copyright protections on the web as journalists. This isn’t true and hasn’t been true – and I’m glad a court said so.
AFP tried to argue in court that by uploading his photos to Twitter/Twitpic, a professional photographer was giving them permission to use and repurpose them. Last week, a court in New York’s Southern District declared what many of us already knew – putting photos on TwitPic doesn’t just make it up for grabs.
When I tweeted about this, I had a couple of journalists tell me it didn’t protect Twitter users’ photos, just those of journalists. This is a pretty common assumption I hear around the web and in the newsrooms I’ve worked in, so I don’t feel too out of line pointing out Virginia journalist Jordan Fifer for this tweet:
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He said the ruling only protected professional photographers and that the Fair Use Doctrine protects news outlets who want to use Twitpics without permission. Not true on both counts, though the latter isn’t as cut-and-dried.
For one, the ruling said:
[b]y their express language, Twitter’s terms grant a license to use content only to Twitter and its partners. Similarly, Twitpic’s terms grant a license to use photographs only to Twitpic.com or affiliated sites. . . . the provision that Twitter ‘encourage[s] and permit[s] broad re-use of Content’ does not clearly confer a right on others to re-use copyrighted postings
While those terms may (and likely do) differ for other Twitter-related photo services, Twitpic’s terms state only Twitpic and its affiliates have a right to users’ photos:
…you retain all of your ownership rights in your Content. However, by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business…
AFP is not an affiliated business with Twitpic, it is a user and has only an end-user license. All users who use this service, at least, own the copyright on their images. Other services, like YFrog, for instance, do allow all users to use and repurpose work uploaded to their servers.
The terms do not, however, differentiate between the copyright of a professional photographer and that of a non-professional.
Secondly, Fair Use gives news outlets a lot of leeway on using user content, but it can only go so far. To review, this bit of copyright law contains four factors that will help determine if unauthorized use of copyrighted material is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
When you use a photo belonging to someone else on a website, on TV or in print, you are using the entire image (not a portion) and using it for profit (most of the time, if you are a for-profit news outlet). Chip Stewart, a journalism professor at TCU dismisses the Fair Use argument in social media images, saying:
Under the four-part balancing test applied by courts in looking at fair use, I don’t see how any one favors the republisher: The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.
So what can we conclude from all this?
1. Assume the users of social media services own the copyright on the work they produce and upload there. In most cases, only those social media services and those they work with generally the the right to use that content without permission.
2. …but users and outlets should check the terms of service on the photo services to see the specific copyright and use terms for each service. Professionals, news outlets and others with copyright concerns should take care to use a service that does not claim ownership of the images uploaded there.
3. Using these copyrighted photos without permission doesn’t fall under Fair Use.
4. No matter what the services’ terms may be, it’s always best to ask for permission before taking photos from the web and using them at your news organization.
5. If you do ask for permission and get it, make sure the user is the one who actually took the photo. As it happened in the case described above (and is frequently the case on Facebook), the person displaying the image is not the one who owns the copyright.
Tiffany Bridge
I suppose the misconception about fair use isn’t entirely unreasonable, since news reporting is specifically mentioned in the section of copyright law that deals with fair use. Nonetheless, it never fails to amaze me that people and organizations whose entire livelihood is based on the production of intellectual property are so ignorant of copyright and fair use. The other thing people don’t understand about fair use is that it’s not something you can claim to avoid getting sued. It’s an affirmative defense. If you use something that didn’t belong to you without permission, you can be sued, and then you have to go in front of a judge, and say, “Yes, Your Honor, I DID take something that didn’t belong to me, but it was totally fair because…” And, you know, maybe the judge will agree with you, maybe the judge won’t. It’s an extremely subjective standard by design.
And it’s not like it’s hard to track down the owner of a twitpic- the person’s twitter username is *right there*.
We just ask for permission, immediately promising to credit the user. We’ve never been turned down. Granted, users might be more positively disposed toward a smaller operation like We Love DC, but even if you’re turned down or ignored, it’s never illegal to *link* to the page that displays it.
And I just can’t imagine the chutzpah it takes to *sell* something that *someone else made*.
Mandy
You’re absolutely right, Tiffany. It never hurts to ask permission or just link to content you want if that’s what it comes down to, but it always hurts when you get sued.
Jordan Fifer
Thanks for this thought-provoking post, Mandy. I wanted to clarify what I said.
I don’t think the ruling “only protected professional photographers and that the Fair Use Doctrine protects news outlets who want to use Twitpics without permission.” In fact, I wasn’t commenting on the ruling itself, but rather on established copyright law.
I do think a plaintiff would have a better legal case for a lawsuit if he/she can demonstrate financial damages. That was the point I reiterated here: http://twitter.com/JordanFifer/status/20280790948515841.
I do disagree with your third conclusion, that using copyrighted photos without permission cannot fall under Fair Use. That conclusion is the antithesis of Section 107 of the federal copyright law, which says in part, “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
There are several criteria for determining what is fair use. They are outlined at http://www.copyright.gov/title17/92chap1.html#107. One of them is “the effect of the use upon the potential market for or value of the copyrighted work.” Thus, if a person who posted a photo on Twitpic merely for his/her followers — and not in the course of professional news gathering or other photography — there is substantially less “potential market for or value of the copyrighted work.”
I would always advise journalists to attempt to contact the copyright holder before using a photo. In the event they cannot be reached, however, Section 107 – what’s become the basis for the Fair Use doctrine – does most certainly contact exemptions for news purposes.
And I definitely agree with much of your fifth conclusion – always double checking the user is the one who actually owns the copyright. But, of course, double checking is essentially a golden rule of journalism.
Thanks again for the post!
Mandy Jenkins
Thanks for replying, Jordan. As I noted in the post, this is a discussion I have often, so I hope you won’t think I was picking on you at all.
My assertion as to Fair Use is, I know, pretty controversial. It’s a point of contention that comes up pretty frequently in my day-to-day work as I see it far more from the standpoint of community engagement than true legality. I have no doubt in some situations, 107 will be plenty of cover both legally and from a PR standpoint where use of the image is crucial to represent a big story. But what of all of the times where someone just has a good Twitter image that’d look great in the paper or on a newscast, with little to no news value? It’s a slippery slope – and that’s where all of the battles will be lost and won.
Regardless of copyright law, I think we’re all in agreement that using an image without permission isn’t great from a reader relations standpoint – and that’s what’s key.
Jordan Fifer
No worries. I’m a firm believer in the “talk it out” strategy of ethics.
And I definitely agree – just because something is legal, doesn’t necessarily make it right.
Jordan Fifer
No worries. I’m a firm believer in the “talk it out” strategy of ethics.
And I definitely agree – just because something is legal, doesn’t necessarily make it right.
Chip Stewart
Good post — and thanks for the link to my post at TCU. This is an area that deserves further scrutiny — there’s no clear answer, even after walking through the legal fair use analysis. My graduate law class is examining this closely now, and we should have an analysis in more depth by April 1. I’ll repost then.
Suffice it to say that it’s not as simple as my original post suggested — yes, always ask permisison, but news use w/ no effect on the market MAY mean it is fair use. The Morel case is only a district court case after all; there are others that come out the other way.
I’ll follow you in the meantime & post back later!