Digital Publishing: Be Careful How You Use It
Posted: 12/12/2013  |  By: Rob Tornoe
A shooting happens at a suburban mall in the wee hours of the night. While you don’t have a photographer on the scene, countless photos are being uploaded in real-time onto Twitter by people in the parking lot witnessing the scene. It’s Twitter, so you take the photo and post it into your content management system to share the scene with your readers.

Fair use, right? Unfortunately, you’ve just violated copyright law.

Every day, hundreds of editors use images from social media web sites such as Facebook, Twitter and Instragam on their web sites without ever understanding the legally precarious position in which they are potentially placing their newsrooms. Despite being part of an organization overflowing with content creators who understand the value of their work, there seems to be a weird idea among journalists that “regular people” don’t have the same copyright protections on the web as journalists. It’s simply not the case.

“There’s a sense that if I find a photo on the web that someone uploaded for free, I must be able to use it for free,” says Chip Stewart, Associate Dean of the TCU School of Journalism. “Just because editors are using an image for a news purpose doesn’t mean it’s not violating copyright law.”

Using copyrighted photos in news coverage is nothing new. Before the internet and social networks became omnipresent, when someone became newsworthy, editors found themselves running down to the local school to grab the only image available—a yearbook photo. While this practice was commonplace among newsrooms, technically the company that took the yearbook photos owned the copyright,

“It’s a good practice until someone brings a lawsuit to settle it,” Stewart says, which seems to perfectly describe the approach newsrooms have developed to using content found on social media.

So what do the terms of service of sites like Facebook, Twitter and Instagram say? Well, in no uncertain terms, despite the perception that users sign away all their rights, these companies all guarantee the individual content creator, not the social network, retains ownership of the work.

“You retain your rights to any Content you submit, post or display on or through the Services,” reads Twitters terms of service, going so far as to say, “what’s yours is yours—you own your Content (and your photos are part of that Content).” Facebook, Instagram, Flickr all have similar guarantees that grant users sole ownership of their copyrights.

Take the case of Daniel Morel, a photojournalist who happened to be in Port au Prince, Haiti when a devastating earthquake struck. Because of the damage, the only way Morel was able to get his photos out was by uploading them to TwitPic and Tweeting them (at the time, Twitter didn’t have a function that allowed pictures to be directly uploaded).

The photos were shared across Twitter, and eventually made their way to Agence France Pressen (AFP), which sold them to clients like Getty Images, the Boston Globe and USA Today, among others.

AFP contended that since Morel posted the images on Twitter at full resolution, he was granting the requisite license to allow all third parties to use, publish and distribute the photos. In court papers, both Getty and AFP claim “they acted within industry norms, customs and practice.”

Despite their claims, a federal court determined that AFP did indeed infringe Morel’s copyrights on 8 photos, and for distributing them without his permission, he is seeking $1.2 million in statuary damages. Add to that a potential violation of the Digital Millennium Copyright Act (DCMA), where Morel contends both AFP and Getty intentionally removed copyright management information from the images, and Morel could walk away with damages totaling $13.2 million.

According to Stewart, the only exception to these copyright rules is when the photograph itself is a news story. For example, when former New York Rep. Anthony Weiner accidentally shared photos of himself naked on Twitter, his copyright of those images was superseded by the public interest in the photos themselves. The story itself was the existence of the photos, allowing news organizations to bypass regular copyright laws and share them.

“What Weiner did was in the interest of voters to know, so newspapers wouldn’t be liable,” says Stewart. “Now posting a photo of Nicki Minaj’s Halloween outfit and claiming the same public interest exception might be a bit more dicey if she decided to sue.”

Despite these copyright laws, there are multiple avenues available to savvy social media editors to enable them to use content shared on social networks. The easiest is the most direct—simply ask permission. The nature of these networks pretty much guarantees a quick response, and most people won’t think twice about their picture being shared.

If you’re concerned about how embarrassing it might look to readers to see your Twitter feed filled with requests to use content, take a cue from the New York Times social media team: create a dummy Twitter account with no followers, and in your request identify who you are and what news organization you’re with. Make sure to keep their permission handy. If the user changes their mind and decides to sue or demand payment, it’ll be important for you to be able to produce that permission request.

Twitter has also blurred the lines with content a bit by allowing tweets, including posts with photos attached, to be embedded directly into news stories. While this is great for blogs, most newspapers run off a content management system that has a specific place to upload images to attach to stories. According to Stewart, as long as you embed the Twitter post into your story, uploading the image within your system, which often times creates a thumbnail to link to, shouldn’t be an issue.

Another avenue for photos is Flickr. I know I told you that Flickr has the same copyright protections as Twitter and Facebook, but Flick has the added functionality of allowing people to share their images royalty free through what’s known as a Creative Commons license. Similar to photos shared on Wikipedia, photos given a Creative Commons license are generally free to use by news organizations, and in most cases the only requirement for use is to give proper credit to the user who took the photograph.

Finally, it’s important to keep in mind that the issue of using one’s work without permission isn’t just a legal issue, it’s an ethical one as well. Stewart asks, “As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news?”

Chances are you would. And despite the public nature of these networks, everyday users can make the case that the specific social network they’re using is only intended to share photos with their friends, not to the media universe at large. As the Society of Professional Journalist Code of Ethics notes, “Show good taste. Avoid pandering to lurid curiosity.”

Rob Tornoe is a cartoonist and reporter for Editor & Publisher, and can be reached at robtornoe@gmail.com.