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January 07 2011

15:20

Ruling or no, always ask permission before re-using images on the social web

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:

  1. Jordan Fifer
    JordanFifer . @mjenkins News orgs have better case for "fair use" of Twitter pics if it comes from a layperson with no financial gain from the pic 30 Dec 2010 from web
-- this quote was brought to you by quoteurl

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:

  1. The purpose and character of the use, including whether such use is of 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 copyrighted work as a whole
  4. 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.

August 19 2010

09:26

June 28 2010

14:43

‘The imperatives of the news cycle’: A licence to steal?

Last week we highlighted some of the criticism being directed at Rolling Stone magazine for its decision to hold off publishing the now notorious General McChrystal article online.

The magazine’s hold-for-the-newsstand tactic led Time.com and Politico to make full PDF copies of the printed article available through their websites – copies which were not provided directly by Rolling Stone, as was first thought, but by third parties.

In the wake of Rolling Stone’s much-derided decision, New York Times’ Media Equation blogger David Carr turns his attention to the behaviour of Time.com and Politico, which later linked back to Rolling Stone’s website when the magazine finally published online.

Publishing a PDF of somebody else’s work is the exact opposite of fair use: these sites engaged in a replication of a static electronic document with no links to the publication that took the risk, commissioned the work and came up with a story that tilted the national conversation. The technical, legal term for what they did is, um, stealing.

Jim VandeHei, executive editor and a founder of Politico, defended the site’s move by claiming that “the imperatives of the news cycle superseded questions of custody”.

Full story at this link…Similar Posts:



March 24 2010

18:34

November 11 2009

21:05

Does Gawker's Publication of McSteamy Sex Tape Constitute Fair Use?

It probably seemed like a fun idea at the time.

Last year, Eric Dane, known as "McSteamy" from the show "Grey's Anatomy," his wife Rebecca Gayheart, and former beauty queen Kari Ann Peniche decided to make a home movie. Yes, that type of home movie. The threesome recorded themselves nakedly fumbling around in bed, slurring words, and splashing in a hot tub.

McSteamy_Doctor.jpg

Given Dane's popularity on the show, it was almost a forgone conclusion that the tape would somehow make its way onto the Internet, and Gawker was happy to make it happen. It published the video in August, and has since racked up over 3.25 million page views.

Before posting the video, Gawker whittled it down from 12 minutes to just under four and added some special effects to cover McSteamy's, well, steamy. (Its sister site, Fleshbot, used an uncensored version.) The tape, as edited by Gawker, does not actually show the threesome having sex -- it's not a porno. In fact, if the video didn't show Gayheart and Peniche without their shirts, and bleeped out the swear words, it might be suitable for daytime TV.


Hollywood sex tapes making their way to the Internet are nothing new. It has happened to Paris Hilton, Tonya Harding, and, of course, Pamela Anderson and Tommy Lee.

While lawsuits almost always follow leaked sex tapes, few cases ever go to trial. (Paris Hilton's suit, for example, ended in a settlement that reportedly made the heiress $400,000.) Dane and Gayheart's suit, which was filed three weeks ago in a California federal court, is surprisingly not about invasion of privacy or defamation of character, as is common when a sex tape goes public. Instead, the couple claim that Gawker's publication of the video violates their copyright. This makes it a unique situation.

I recently described for a friend what the video did and didn't show, and explained that as long as Gawker didn't help steal the tape, it does not matter how they got it. After my 15-minute soliloquy, she asked, "So, who will win?"

"I give Gawker a three-point spread," I said.

Here's how the case of McSteamy V. Gawker breaks down, along with a look at the larger legal issues at play.

Does a Sex Tape Fall Under Fair Use?

In 1976, Congress enacted the Copyright Act, which states that a copyright holder has the exclusive right to distribute or reproduce copyrighted material. However, the law includes one big exception, which is called "fair use." Section 107 of the Copyright Act states that a person or business can publish portions of copyrighted material so long as it is for the purposes of criticism, comment, or news reporting.

Gaby Darbyshire, a barrister and the vice president for Gawker Media, told me that the company published the video because it was "newsworthy." But simply labeling something as news doesn't automatically constitute "fair use." In order to determine whether Gawker deserves the law's exception, a court will look at four factors listed in Section 107.

First, a court will look at whether Gawker used the video for commercial purposes. Obviously, Gawker is a for-profit business, but that alone doesn't prevent it from publishing the video.

Instead, a court will consider the purpose and character of Gawker's use of the video. The question here is whether the website posted Dane and Gayheart's video for news or commercial purposes. If Gawker edited the tape to suit a newsworthy purpose, the website would have given the video a meaning different than that of the original, thus making "fair use" appropriate.

Here's the argument that Gawker will likely make: Dane, Gayheart, and Peniche made the tape because they wanted to record sexual acts. According to Darbyshire, however, Gawker posted the tape because they found some news value in the recording. Darbyshire said that seeing "Dane, his wife, and a former beauty queen who went on a reality show to be treated for sex addiction, and reportedly is a Hollywood madam," together is newsworthy. Thus, Gawker will claim that its use of the video added a news element to a home movie.

David Ludwig, an intellectual property attorney for the law firm Dunlap, Grubb & Weaver, agrees with Darbyshire. "Newsworthiness does not limit itself to hard news, it can involve celebrities as well," he said.

As a result you can probably score a point for Gawker on this issue.

Second, a court will examine whether Dane's tape was published or unpublished at the time of Gawker's use. In terms of "fair use," the law states that "the fact that a work is unpublished shall not itself bar a finding of fair use." However, "scooping" a copyright holder on their work does make the "fair use" exception less likely. In a 1985 decision, the Supreme Court stated that a copyright holder has the "right to control the first public appearance" of copyrighted material. Gawker's post was the first time the public had ever seen the video, meaning that Gawker does not have much of an argument here. Call it McSteamy 1, Gawker 1.

Third, a court will look at the "amount and substantiality" of Gawker's posting in relation to the video as a whole. Gawker posted just under four minutes of the 12-minute tape. As far as the law is concerned, the posting's length may critically compromise Gawker's claim to "fair use."

In 1987, the Second Circuit Court of Appeals held, for a variety of reasons, that appropriating one-third of 17 letters written by author J.D. Salinger did not constitute "fair use" because it was more than "necessary to disseminate the facts." Ludwig suggested that Gawker could have legally posted a screen-shot or a snippet of the video to prove that their story was true. Instead, they excerpted a third of the video. Dane 2, Gawker 1.

Fourth, a court will ask whether Gawker's publication of the video supplanted the need for an individual to purchase a legitimate copy of the couple's tape. This depends on what material Gawker left on the cutting room floor.

If the whole video consists only of the threesome hanging around a house naked, then perhaps, after viewing the Gawker excerpt, no one would be interested in purchasing the full version. Thus, "fair use" would be off the table. "No one is going to buy a work if it's freely available on the Internet," Ludwig said.

However, if Gawker edited out some really juicy material -- sex scenes, for example -- then people could still be interested in a bona fide copy of the recording. Though Darbyshire declined to offer any specifics, you can probably assume the McSteamy threesome gets more interesting than what is currently available on Gawker. Dane 2, Gawker 2.

Fair Use Versus Infringement

To recap, Dane and Gayheart appear to have a valid claim against Gawker for copyright infringement. However, Gawker has a formidable defense by way of the "fair use" exception. It's important to note that the four factors outlined above are not examined in isolation of one another. Instead, courts try to balance them against each other.

In the end, if this case goes to trial, the outcome will likely depend on what Gawker chose to cut from the video. It's a strange reality that, in the case of sex tapes, what a news organization doesn't publish is sometimes more important that what it does.

Rob Arcamona is a second-year law student at The George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

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