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 robtornoe@gmail.com