More Lawsuits for Unauthorized Use of Photos – Even on Social Media Sites

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

In recent weeks, we have continued to see copyright lawsuits against broadcasters filed by photographers who allege that their photos have been used without permission. This spate of lawsuits has not been confined to filings against broadcast companies – even the Donald Trump campaign has reportedly been sued recently for his son’s tweet of a picture of a bowl of Skittles in his now-famous tweet comparing Syrian refugees to the candy treats. We have written about this issue before (see for instance our posts here and here), but what makes these issues worth writing about again is that several of the recent suits involve not just the unauthorized use of a photograph on a station’s website, but the use of photos in social media posts including tweets on Twitter and posts on Facebook. Is this really an issue?

It certainly is a concern, especially for commercial businesses. As we have written before, just because someone posts a picture on the Internet, even on a social media or photo sharing site, does not give others the right to exploit that photo, especially on a digital site of a commercial business. Posting on a social media site may give the social media site owner the right to exploit posted content consistent with their terms of use, but the person who created the content does not give up their underlying copyright in any creative work to third parties. The Skittles suit represents an instance of a photographer using copyright law to enforce these rights, apparently as he did not agree with the political sentiment expressed by the tweet in which the photo was used. But not too long ago, there was significant publicity about a lawsuit, now reportedly settled, about a New Jersey newspaper suing a cable news network because one of its personalities used a well-known 9-11 photo from the paper as the profile picture on that personality’s Facebook page – without first securing permission. But, isn’t that what these social media sites are for – sharing content?

Yes – content can be shared, but it is usually content to which the person sharing it owns the rights (e.g. vacation photos) or arguably material that is used with some degree of commentary or criticism where a fair use defense is possible (see our post here on fair use). Generally, merely posting a link to another site (which may pull in a picture used on that other site as part of the display of the link) has been seen as permissible, but note that in Europe that may be changing especially on sites that post links to other’s sites as part of a business venture, such as a search site. Even here in the US, there have been cases where there has been a problem because one site posted too much of the content from another site in connection with the posting of the link to that site, as if you post all of the important points of someone else’s article on your site, it may eliminate the need for the viewer to click on the link to go to the other site where the content creator can get credit (with advertisers or others) for the viewer’s visit to their site. Given these sensitivities, it is clear that taking a picture and posting it on a business social media feed without permission is likely to raise the hackles of a copyright owner who discovers it – as it uses their creative work for no compensation whatsoever.

So what do you do? Take your own photos and use them on your sites and in your social media is one easy answer – and many broadcasters, including radio broadcasters, have tasked their employees with taking photos of station and community events that can build up a library of images for the station to use. Plus, there are many stock photo services where, for a reasonable monthly subscription fee, you can get the rights to a whole catalog of photographs to use on your business sites. A few dollars now to subscribe to one of these services can save lots of headache (and even more dollars) later on.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline.  Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your membership.

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