Below is the Powerpoint Presentation from the presentation I gave this past Saturday discussing “Legal Issues for Writers.”
I am happy to report that I will be presenting this week on “Legal Issues for Writers” at the annual Pacific Northwest Writer’s Conference on Saturday, July 19th. I will be discussing a variety of issues that writers may face including copyright, trademarks, right of publicity, how to market yourself without getting sued and other topics. The link to the PNWA conference for my day is here.
— Ellen DeGeneres (@TheEllenShow) March 3, 2014
If you didn’t know, the above picture was the most Retweeted tweet/pic in the history of the social media platform. It actually crashed the site. So the question that has come up among lawyers is who owns the picture?
Actor Bradley Cooper took the picture, but Oscar show host Ellen DeGeneres uploaded the picture from her twitter account. Usually the original content creator (Cooper) would hold the copyright. But, DeGeneres does have an argument since she was the one with the idea for the “selfie” and posted the picture. Then, there’s the issue of whether the actual phone used would have a right to the picture. Without too much of an exhaustive discussion on this, its unlikely unless the content creators had a contract regarding copyright.
The first issue is to look at the Twitter terms of service since that was the method in which the photograph was distributed. According to this Poynter article, the twitter account holder has the right to post, submit or display on its platform. Certainly, if you copy and paste the photo from Twitter and use it for another use, you may have to look for permission especially if its for commercial use. A case last year saw a photographer win a lawsuit against a news agency (and settle with several others) as a result of the news agencies not seeking proper permission. So, as posted here, the photo has not been taken out of its native form.
A Federal Court in New York found in favor of Haitian photographer Daniel Morel in a prolonged fight over photos he took of the Haiti earthquake in January 2010.
A jury found that Agence France-Presse and Getty Images willfully infringed upon Morel’s copyright of 8 pictures he took of the earthquake and that he sent out via Twitpic on Twitter. The jury awarded Morel $1.22 million.
According to a New York Times article, Morel claimed that Getty Images and AFP sold his exclusive photos for $45.
Morel’s Twitpics of the earthquake were retweeted by Lisandro Suero who indicated that the photos were his. As such, AFP distributed them to clients and Getty Images distributed the photos in the U.S.
Prior to the Court rendering its decision, Morel had settled with The Washington Post, ABC, CBS and others that used his images without authorization.
The jury determined whether the infringement had been “willful” by AFP and Getty Images and the amount of damages.
The case supports the rights of photographers and provides clarity of the rights to use of photographs in the age of social media. AFP had sued Morel seeking a declaratory judgment to show it had not infringed Morel’s copyright. It cited Twitter’s terms of service arguing that it had granted a license to use his TwitPics. However, the terms of service grants Twitter only as granting a license to use the photographs. Thus, anyone seeing the photos on Twitter or any subsequent retweets of the photos would not have a license to use the photographs.
While this case has many details to it, the big takeaway is that photographers that post photos on social media sites like twitter should look at the “terms of service” for the social media platform. It is likely that you are giving a license to the social media provider but not any of its users. Moreover, the Morel case is a win for photographer’s rights. In a time when social media is a way to obtain and disseminate information, there are still protections out there to ensure that your intellectual property is not taken.
The court case filed in the US District Court Southern District of New York is Agence France Presse v. Daniel Morel
In U.S. Copyright law, Fair Use is a doctrine that while technically infringing on the copyright owner’s rights, there are certain exemptions considered permissible; and such fair use can be used as a defense against a claim of copyright infringement.
Some exemptions to infringement permitted under Fair Use include criticism, comment, news reporting, teaching, scholarship and research.
According to the Copyright Act, there are four factors that will be evaluated to determine fair use:
1) Character or Purpose of Use; this includes whether work is used commercially or for nonprofit educational purposes.
2) Nature of Copyrighted Work
3) Amount and Substantiality of the Copied Work
4) Effect on the Potential Market
The factors highlighted in the Copyright Act were determined prior to the use of new technologies such as Facebook, Twitter and other forms of social and digital media. As a result, there are some big question marks when it comes to enforcement of copyrights and where and when Fair Use can be used to defend infringement.
If you have a question regarding Fair Use, do not hesitate to call or email to set up an appointment.