Digital Publishing: Publishing Dilemma

By: Rob Tornoe

Digital Publishing: Publishing Dilemma

A local reader posts a stunning picture of the skyline on Twitter that would go great with a story up on the site. You’d embed the tweet, but your content management system is clunky, so you decide just to copy the photo and add it to the story, making sure to give the photographer credit. After all, they’re posting the photo on Twitter, which means they’re okay with anyone using it, right?

Sorry, but your media organization has just stolen someone’s work and violated their copyright, opening you up to a lawsuit, hefty fines and the ridicule of all your readers.

Digital media rights are a tough road to navigate for many media companies in the age of social media. Adding to that is the pressure to get stories up fast, and content is proven to reach more people if there is a photo or illustration attached to the work.

“Content rights in the digital age trip up both students and professionals,” said Jonathan Peters, a media law professor at the University of Kansas. “The stumbling block for editors to overcome is to recognize all content put on social media is copyrightable.”

The case of photojournalist Daniel Morel should be a cautionary tale for all editors whose best defense for using social media photos is “everyone else is doing it.” Morel tweeted out photos about the earthquake in Haiti that were eventually used without permission by the Washington Post, ABC, CBS and others. Eight of his photos were even resold by Agence France-Presse and its American distributor, Getty Images.

Morel ended up suing, and AFP’s defense was basically that since he uploaded the photos in high resolution, he was granting license to allow third parties to distribute them. They also claimed they just “acted within industry norms, customs and practice.”

Morel won the landmark copyright case and was awarded $1.22 million in damages. The Washington Post and others ended up settling privately with Morel prior to the court’s ruling.

“Websites should start with the notion that if they cannot find a photographer’s contact info for a picture, it is unavailable for use,” said technology journalist Glenn Fleishman. The moment a user takes a photo, draws a cartoon or writes a draft, ownership of their copyright of that work vests.

On top of that, the terms of service of practically every social media website makes it clear that the creator owns the legal rights to their content. Here’s how Twitter spells it out in their terms of service:

“You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

“So, embedding a Tweet is okay,” Peters said, “but downloading and republishing without permission is not.” Also, using websites like Storify allows editors to curate content shared on other social media websites without violating a creator’s copyright.

Speaking of other social media websites, nearly all grant right similar to Twitter in their terms of service. Facebook says, “You own all of the content and information you post on Facebook, and you can control how it is shared.” Over on Instagram, they explicitly say their company “does not claim ownership of any Content that you post on or through the Service.” Google+ bluntly says, “What belongs to you stays yours.”

It’s particularly worthwhile to revisit this in the aftermath of the massacre of cartoonists and journalists at the French satirical magazine Charlie Hebdo. Almost instantly, cartoonists from across the globe began posting original cartoons on Twitter, Facebook and Instagram in response to the shooting.

Many news organizations created blog posts and embedded tweets sent by cartoonists sharing their work, perfectly permissible under Twitter’s terms of service. However, many media companies went that extra step and simple copied the cartoons into their content management system to use as slideshows, art on stories and even as content in their print publications.

I speak from personal experience on this. In my other life as a cartoonist, my Charlie Hebdo cartoon was used and reprinted without permission in numerous publications, some of them large enough to know better.

So why are editors, who otherwise understand the power and importance of content, so willing to blindly use other creators work without seeking permission first?

“Technology has surpassed the ability to grapple with an artist’s rights and getting paid for our work,” said Matt Bors, a Pulitzer Prize finalist and the editor of Medium’s cartoon vertical, The Nib. “This happens all the time, as chain newspapers and companies try to cut the cost of content as they worry about the bottom line, shooting themselves in the foot in the process.”

Some online media companies, such as BuzzFeed, Fusion, Pando and Medium all have cartoonists and illustrators on staff. After all, the best way to protect yourself from stealing someone’s work is to simply produce original content yourself. Politico’s popular staff cartoonist Matt Wuerker not only drives a lot of traffic with his cartoons, he earned the online political magazine its first Pulitzer Prize in 2012.

“New media companies care about cartoons a lot because it’s simple numbers,” said Bors. “Cartoons are especially popular in the online world where social sharing drives a lot, if not most, of a website’s traffic.”


Fair Use

When is it legal to use content posted on social media without permission? Well, if the photograph or cartoon itself is news, then the public interest of seeing that work would overwhelm the copyright the creator holds. Examples of this would include the Muhammad cartoons published by the Danish newspaper Jyllands-Posten and sexually suggestive photos former New York politician Anthony Weiner posted of himself on Twitter.

Other instances, such as using the Facebook photo of the victim of a car accident or the exterior of a local business shared on Instagram, fall under a grey area involving the four pegs of fair use law—the purpose and character of your use, the nature of the copyrighted work, the amount of the portion taken and the effect using it has on the creator’s market.

In that case, you’re basically taking the chance you won’t be sued and are leaving it up to a court to decide if the newsworthiness of reprinting a photo or cartoon without permission outweighs all other factors, something Peters suggests editors should make every effort to avoid doing.

“A lot of editors play the odds, wondering what the real chance of getting sued by someone is,” Peters said. “If I were advising a publisher, I would not be comfortable as a media lawyer banking solely on that first prong of fair use law, because the others line up on the side of the copyright holder.”

Keep in mind that if your organization is sued for copyright infringement, statuary damages could add up to $150,000 per image. Play those odds if you want, but keep in mind that in all casinos, the house always wins.

Unfortunately, in addition to it being a legal issue, it’s also an important ethical dilemma for media companies staffed with content creators to simply use other people’s work without permission. After all, Facebook is basically someone’s online photo album. Would you be comfortable as a journalist going through the photo album of a mother whose daughter just died without permission, just to find art for a story? I doubt many editors would.

When it comes to using photos posted on social media, the best practice is simple: get permission.


Rob Tornoe is a cartoonist and columnist for Editor and Publisher. Reach him at

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Published: March 19, 2015

2 thoughts on “Digital Publishing: Publishing Dilemma

  • March 19, 2015 at 11:33 pm

    When it comes to news, trust your hometown newspaper; not social media By Wayne Dominowski SBA Editor The best source of news you have going for you is what you have in your hand right now: Your local newspaper. Honest. As a long time journalist, editor and publisher, it horrifies me to see what’s being passed off today as news. Folks, it’s not news. It isn’t because anything coming through under the banner of social media is a sham. You see, social media is not at all obliged to be impartial, much less honest. As such the latter has no reason to be responsible for anything it produces. Its main course is comprised of any one or all of the following: (1) agenda driven, (2) personal opinion, (3) politically correct, and (4) non-resourced. In essence, it’s junk that has made its way onto America’s Internet. Social media — hack houses like Huffington Post, Freedom Outpost, Newsmax, Western Journalism,,,,,,,,,, and virtually hundreds more — is nothing more than an opinion-blubbering wasteland. Opinions, in case you didn’t know, are unsubstantiated, unreal views, and nothing more. It’s mostly propaganda by virtue of what it purports to report under the guise of news reporting. The Internet is a fascinating vehicle, no doubt about it; but for all intents and purposes it is still in its infancy — meaning there are a myriad of deficiencies inherent in the product. What’s frightening is that at this point in time, no one is really working on developing the Internet into a viable, reliable information source. Currently, and for a long while into the future you can be sure hackers will be creeping around cyber space, breaking into bank accounts, charge accounts, and even our U.S. Government. They already are. Streams of information float from desk-to-satellite-to-home-and-office, and right now it’s impossible to know what’s fact and what’s fiction. Be assured, social media is dominated by fiction. What’s the difference between social media and your hometown newspaper? That’s easy. Your hometown newspaper must be accountable to the people it serves. In other words, your town editor has to be honest because — as you all know — everybody in your community knows what is and what isn’t. Every hometown newspaper person knows if they mess up even once, integrity goes up in smoke. Obituaries. They’re important to a town because the person who passed away meant something to the community. He or she probably grew up in town, farmed, or worked his/her whole life in one place. The deceased knew you, and you knew the individual who passed on. Familiarity with local sports. If you don’t believe a school is an extension of community, watch what happens when a school district closes because there are no more students to attend classes, and there aren’t Friday night football games, or basketball and wrestling, baseball and softball. The community generally, and regrettably, dies thereafter. The death is slow and painful. Local news and events. These include the above plus feature stories, articles, releases on what’s happening in the town the newspaper serves. Honestly, it’s a matter of life or death for a town newspaper to get it right, be accurate, and truthful. Don’t even think about misspelling someone’s name if you are running a small town weekly. Let’s put it in good ‘ol Iowa terms. If a stranger stopped in your town and sat himself down at the local café and began telling you that your community happened to be the site of intergalactic aliens landing, would you believe him? Or, a stranger in town passing out leaflets saying he just learned when the end of the world would take place, would you follow him? Well, that’s social media in simple terms. Social media is with us, unfortunately, but you don’t have to be a slave to its daily feed of frenzy. If you must read the stuff being put out by all the news wannabes, question what’s in front of you. Ask why? Who said so? Where did they get their information? How do I know they are accurate in what they report? Where is their authentication/verification? Who are their sources? Who checks their facts? If you do the above, you will be able to dismiss the vast network of misinformation fed to America hour after hour, and day after day. In doing so, you will find peace of mind and the ability to once again realize that all doesn’t need to be presented as a Hollywood script. ED. NOTE. This commentary was submitted to the Iowa Newspaper Association (INA). The SB-Advocate was informed that the commentary would be sent to all weekly newspapers in Iowa.

  • March 19, 2015 at 11:35 pm

    Editors should be aware that images from Wikimedia Commons , which are primarily intended for use on Wikipedia, can be used free of charge, but only if they are properly credited. This does not apply to images hosted by Wikipedia unless the image is freely licenced. In general, when you click on an image on Wikipedia, you will be taken to a page that includes a link to a full-size version of the image and a note indicating whether the image is freely licenced or is only available for “fair use”.



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