7 essentials concepts to understand about photo copyright and lawn mowers if you want $1.2M for illegal use of your Twitter photos
(photo of the Haïti earthquake by UN Photo/Logan Abassi)
Daniel Morel, a haitian photographer, just won an important lawsuit against Getty and AFP, who redistributed his photos without the photographer's consent.
The case is an important one for many reasons. First, it is the largest amount ever given by a jury for copyright violation of a photo on social media. Second, it is a clear message to all publishers that the web and social media are not "open season". And the third reason is more personal. We are building CrowdMedia to help photographers get their copyright respected while giving publishers access to amazing photos, so this judgment is a good step in that direction. It shows the need to organize photos who have editorial value posted on social media so photographers could get credited and rewarded for their photos.
In the last 2 days, I've read many great opinions on this judgment on Rangefinder, Petapixel, PDNPulse, Mashable and even Hacker News. The more I read, the more I saw misconceptions about the case and its implications. I am not a lawyer, but I've read an awful lot about copyright laws and TOS of social networks, plus we've had legal counsel when we wrote CrowdMedia's Terms of Use and License, which is why I feel I should clarify 10 essential concepts everyone should understand about this case and about copyright on social media.
1) Copyright and the Right to use a photo are 2 different things.
Copyright is ownership. Plain and simple. If I buy a lawn mower, ownership is transferred from the store to me. I am the proud owner of this fine machine. I can give my brother and my neighbor the right to use it, but it is mine nonetheless. Moreover, I can add conditions to its use. They can only use it during weekdays, and only for their own lawn, they can't lend it to anyone else or use it to build an exciting lawn mowing business, etc.
It goes the same for a photographer and his photos (well, not exactly, but the analogy works well enough). The photographer grants publishers the right to use his photo(s) within certain limitations. In this case, Getty and AFP didn't get the permission from the photographer, so they infringed copyright. It is even worst because their full-time business is managing that kind of right. It's as if my second neighbor, who was a professional landscaper, decided to take my lawn mower without asking me and made money using it. He should know better and can't claim ignorance
2) If I post my photo on a social network, in a blog post, or anywhere, I don't transfer the copyright, it is still mine.
Posting a photo has no implication whatsoever on copyright. It really doesn't change shit. If I took the photo, I remain its unique owner, period. It's like showing off that shiny new lawn mower in my driveway. It's a place where anyone can see it, does it mean you can put it in the back of your F-150 pickup truck and drive away with it? We all know the answer to this one.
3) You don't need to register your photo's copyright to have it. It is there by default.
Buying the lawn mower grants you ownership of it, and the invoice is the proof of that fact. You don't have to register it to your nearest police station to prove it is yours. It it gets taken without your permission and you call the cops, they shouldn't tell you "hey, you didn't register it as yours with form 157-B, so anyone can take it". And if they do, maybe having your lawn mower stolen isn't your biggest problem.
Photo copyright follows the same guidelines. The fact that you took the photo makes you the sole owner of it, and you don't have to do any additional step to claim ownership. And how do you prove that ownership? It could be with the photo's metadata or its Exif (data affixed to the image by the camera when it is shot), by having it on your phone or computer before anyone else, by showing its online path leads to you, by apposing a watermark, etc. There are many ways, and normally if you find out your copyright has been infringed, proving this shouldn't be the biggest issue.
4) A photo posted on a social network can (and will) be SHARED within that network.
Terms of Use and Licenses are important. So are insurance and banking agreements. If you're like me, you don't read all the fine print of the latter, so why bother with the former? I'm with you on that. I hate legalese, but it's part of my life now, so I know more about social network TOS than I would like.
I haven't checked the TOS of all social networks, but all the big ones are pretty consistent. When you post a photo on Twitter, on Instagram, or on Facebook, you grant them the right to use and reproduce that photo within a lot of constraints. The first and most important one is that your photo can only be used within this network's experience, it can't be taken out of the network's context. For Twitter, it means a Retweet or embedding the whole tweet. For Facebook, it means sharing or embedding a feed. For youtube, it's embedding as well, and for Tumblr it would be the Reblog action, etc. No one is allowed to take your photo out of that context. And they are very clear on what that context means because it is also in their own interest to make sure your posted photo is shared within that network's branding.
Sometimes, social networks reserve the right to use your photo to showcase what is going on within their network. This condition is part of CrowdMedia's Terms of Use. This basically means we could use someone's photo to show people what type of content is posted on CrowdMedia. Once again, the photo would be shown within the context of the whole platform.
It seems Facebook would like it if its advertisers could use any photo posted on the network in Facebook-based ads, and from what I know this is the furthest anyone has gone in this direction.
In our case, we understand publishers would love to have access to photos outside of a social network's branding, which is why we have created a process where photographers grant the right to use their image and get half the proceeds, while retaining copyright and getting proper credit. We feel everyone can win with such a possibility.
5) If someone steals your photos and a publisher uses them illegitimately, that publisher's responsibility might be greatly reduced if they react rapidly when they learn about the situation.
While publishers might be large corporations, the people working there are normal workers who have too much to do and not enough time to do it. They are not evil, and most of them value copyright.
In Morel's case, to Getty and AFP's defense, they initially got the right to use the photos by Lisandro Suero, who tweeted them as his own and asked publishers to give him the credit for the images. So why is it their fault if they didn't even know? Well they wouldn't have been liable if they had no indication whatsoever that Suero wasn't the photographer. The thing is, it seems they had good reasons to doubt Suero's claim to ownership.
Let's go back to our lawn mower. If I buy it second-hand from someone in his garage, and it turns out it was stolen to begin with, I will have to return it to its legitimate owner and the thief will be prosecuted. I will lose money, I won't be allowed to use the lawn mower anymore, but I am not responsible for what happened because I had no way of knowing it.
The situation changes if I have good reasons to believe the lawn mower I bought was stolen and I do nothing about it. I could see a name tag under the seat the second time I use it, or maybe I saw a sign asking if anyone has seen this wonderful machine that was stolen a day before I bought it, or the man who sold it to me doesn't even know how to operate it and I decided to ignore these facts because it was more convenient to keep on believing everything was correct.
The same is true for publishers. If they have reasons to doubt the photographer's claims, they shouldn't use his photos. And in the case they already used them when they learn new information, they should remove the photos immediately from their website and offer the amount they paid, or the money they made by using this photo, to the rightful owner if they can reach him. If they behave this way, they most probably wouldn't be held accountable for what happened.
We had a sad and enlightening copyright infringement situation at CrowdMedia after a couple of weeks of existence. We got the rights to redistribute photos of a major explosion from an alleged photographer. Turns out he wasn't a photographer at all, he was a Twitter user from Belgium who wanted to see if he would get away with it. We began having doubts about the legitimacy of his ownership a couple of hours after the photos were published. Within 24 hours, we realized he wasn't who he claimed to be. We immediately removed these photos from our platform, and a little bit later all other photos from him as well, and we asked the publishers who had used his photos to remove them. We did all this without getting any notice from the legitimate photographer, and since we didn't do any money from these shots (we were still in testing mode), the story ended there. We weren't perfect, but we did our best to be ethical and good citizens.
With Getty and AFP, the problem is they allegedly had doubts about Suero's account, and when they knew for sure the photos were Morel's, reports say it took them 2 days to ask their clients to kill the photos. I don't know why the situation was dealt this way, but my guess is they thought the photographer would accept a small amount and let it go. Obviously, if that was the plan, "Fail" would be an understatement.
6) The DMCA can be used to protect photographers, you should use it whenever your copyright is not respected.
The Digital Millennium Digital Act can be extremely useful because it standardizes the way we should deal with copyright infringement when we notice it. Under the DMCA, publishers must offer a way for creators of content to report copyright infringement and they must act rapidly when they receive such a notice. At the same time, copyright owners' first step has to be a DMCA takedown notice, not suing every time they see a copyright infringement.
That being said, the DMCA has a very limited legal scope since it is only valid in the United States, and even then, State jurisdiction may apply and make the whole process legally useless, as it did in the Doe v. Geller case.
It is unlikely for anyone to get monetary compensation under DMCA. It is mostly a way to put pressure on the publisher to remove your photos right away if your copyright has been infringed.
In the Morel case, the prosecution used copyright laws, which are more useful than DMCA to get compensation.
7) If a publisher uses one of your photos under "fair use", they probably don't know what fair use means.
Fair use is the publisher's equivalent of the "My dog ate my homework" argument. Yes, I guess a dog has actually eaten a homework somewhere, once, but chances are anyone who comes up with that excuse is more lazy than unlucky.
I won't go into the 4 factors of fair use, there are clear explanations already out there. I'd rather use our lawn mower one more time.
My third neighbor decides to borrow my lawn mower without asking me because he saw it in my driveway, I wasn't doing anything with it, and his grass is so long that no one can see his address from the street, which causes him major problems when he orders pizza. Should he be allowed to do this under fair use? After all, it is important to have his address seen, isn't it? Obviously, this wouldn't fall under fair use because he could cut his grass through other means and his action, at that exact moment, wasn't a public necessity. Now if an injured kid was lost in his front yard and the only way to find him now was by cutting the grass with my lawn mower, that would be a completely different situation. He could argue there was a public urgency and in that sense, for this time only, using without consent could be justified under fair use.
That isn't a thorough explanation of what fair use is in the context of photography. Fair use can allow new works from existing works, among other things, but in the context of non-fiction news photography, the test would be three-fold. One: Is it necessary for the good of the public right now. Two: If condition One is met, is using this photography the only way to show what is happening. Three: If conditions One and Two are met, have I tried to get permission to use this image in every imaginable way.
A photo and a lawn mower have more in common that we first thought.
I believe every photographer and publisher should know and understand these 7 essential concepts. The Getty and AFP judgment is a much needed wake-up call. It reinforces the idea that producers of content should be able to get the credit they deserve and, if they want to, monetary compensation for their work.
Before taking someone's photo, imagine it is his lawn mower. Would you run away with it or ask for his permission to use it?
