In part one, we discussed how fair use may apply to the media’s use of social media images. In part two, we looked at how the various sites’ terms of service come into play. Today, we look at the one prominent case in this area and describe some best practices.
The Agence France-Presse Twitter Case
There is just one well-known case involving the media’s use of social media images. Agence France-Press and the Washington Post both used images of the Haitian earthquake put on Twitter by photographer Daniel Morel. A judge rejected AFP’s argument that it could use the images because they were put up on Twitter. The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter. After denying AFP’s motion for summary judgment, the case, as far as I can tell, is still pending.
1. Make sure it’s legit
It’s easy to get duped. Jimmy Kimmel showed us that. This is more a producer/editorial function rather than legal, but it’s worth noting here.
2. Get permission
The good news about social media is that it makes it easy for you to reach out to ask permission. You don’t need any magic language and you don’t need a lawyer to draft anything for you. Send the person who posted the image – “Hi, I’m the producer, we are considering using this image. Did you take it and would you mind if we used on the news?” It is not uncommon for there to be a small payment, but most amateurs won’t ask.
3. Make sure you have permission from the right person
In the AFP case, AFP did reach out and tried to get a license to use the images. They just did not get them from Morel — the actual photographer. The AFP staffer saw the images on Twitter and reached to the account where the staffer saw them. Unfortunately, that person had already lifted them from Morel’s account. AFP then distributed the images to Getty and Morel was not pleased. You can read more about the facts of the case here. For those of you who want some more legal beef on the case, check out Professor Goldman’s post here.
4. Don’t make promises in your request or box yourself in
Because of fair use, you don’t have to ask for permission. Even if they say no, you might be able to use it. Therefore, don’t send a message that implies you are only going to use it if you obtain their permission or suggests that you have to have it. My example above would be fine. Sending a message that says: “We have to hear from you soon to know whether we have your permission” implies it’s a requirement and could be used against you if there is a trial later.
If you are unable to get permission, then you should at least provide attribution. Many amateurs would be satisfied with a little notoriety from the attribution. Attribution won’t get you out of a lawsuit if they get mad, but it may help show you were acting in good faith or alleviate any anger so the person reconsiders whether they really want to file a lawsuit.
The Poynter Institute’s Adam Hochberg wrote an article titled “Twitpic, Flikr Use by Eyewitnesses Raises Questions for News Orgs About Image Rights, Compensation” that includes a good discussion of these issues. According to the article, the Associated Press requires editors to contact all “citizen photos” and verify each image for both authentication and permission. The article provides several ideas for an image policy and some of the issues involved.
What is the real harm?
The main point of this series has been to avoid any liability and provide some guidance and good practices. I am not saying the minimal likely harm should be part of the decision-making process as to whether you violate a copyright. When dealing with fair use, there is risk, but it is usually not a huge risk. Assuming it is a close call (and you are not scooping or stealing some paparazzi images of the Royal Baby), you are likely looking at having to pay either actual damages or statutory damages. The actual damages could be the market rate for the license to use the image. The statutory damages, on the other hand, are between $750 and $30,000 per work. If the fair use analysis is a close call and you use best practices, you are likely to be on the lower end of the statutory damages. In the AFP case, the court ruled he damages would be assessed on each image used by AFP and not on each time it was subsequently downloaded or used after AFP sent it to Getty. Whether you multiply $5,000 times 8 or 8,000 makes a huge difference.
If you mess it up, your biggest liability is likely going to be the bad P.R. and your legal bill.