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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.

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