Cruz Law, PLLC

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Who owns Ellen’s “selfie”?

Here are a couple interesting articles as to who owns Ellen’s “selfie”? Here and Here.

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.

The best practice, as always, is to ask for permission. This never hurts and so long as there is proper attribution, the copyright holder will usually allow the use. The other best practice is to check with the terms of use for the social media platform you utilize to see who owns what. If you have any other questions regarding social media, you may speak with a social media lawyer.

Photographer is awarded $1.2M in copyright infringement case

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

Washington State passes amendments to proposed social networking law

The Washington State Senate unanimously approved amendments to the social networking legislation.  The proposed amendments would prohibit employers from coercing or requesting that employees provide them with login information for personal social networking sites.

The amendment also prohibits employers from requiring employees to “add” employers to their list of contacts of their personal social networking sites.

In addition, the amendment grants the employee or a prospective employee the opportunity to sue the employer if the employer violates the new law.  There is a statutory fine of $500 plus attorney fees.

The proposed law and penalties reflect a need to protect the privacy of an employee.  Of course, if the employee grants access and/or the employee’s information is readily available over the internet, then one might argue that the rules here would not apply.  There are exemptions to the law which would allow an employer to seek information from an employee’s private social networking site as well.  As an employee, one should be prudent about what they put on a social networking site such as Facebook and Twitter.  Also, check the privacy settings on those sites to ensure that only those that you want to see your information are allowed to see it.

Cruz Law, PLLC would be happy to answer any inquiries about the new social media law.

Can employers request your Facebook password?

The Cyber Intelligence Sharing and Protection Act (CISPA) was blocked by members of the U.S. House of Representatives.  CISPA would have banned employers from asking for social media passwords of its employees.

The bill would help the government react to cybersecurity threats by making it easier to share information between itself and private company.  Some argue that it’s a major invasion of privacy as it would be easy for companies to hand over users’ private information to the government.  More background on CISPA can be found with this excellent post on PC Mag.

The Washington state legislature currently has SB 5211 which proposes employer social media password legislation.  There is criticism about whether this legislation is necessary.  But, the law, if passed, would prevent employers from obtaining social media passwords from its employees.  It also would allow a statutory cause of action with a penalty of $500 to a prevailing employee or prospective employee in addition to “any award of actual damages” plus reasonable attorneys’ fees and costs.  Additions to the state law include limited reasons for an employer to access a personal account or profile.

The bill is currently matriculating its way through the state House.

Court dismisses Viacom lawsuit against YouTube

A recent ruling in New York federal court may have repercussions of online use of clips on YouTube.  The Court dismissed the lawsuit against YouTube for unauthorized use of clips showing Comedy Central clips of “The Daily Show” and “South Park.”

The Court ordered that You Tube was protected by the “safe harbor provisions” of the Digital Millenium Copyright Act.  Thus, You Tube would not be guilty of any form of copyright infringement unless it had knowledge.  It would be the burden of the party making the accusation of copyright infringement and not for You Tube to disprove.

Viacom argued that YouTube used unauthorized copyrighted material to draw visitors and make it more attractive for potential buyers.  The argument was that YouTube benefited via ads placed next to videos.

Viacom plans to appeal the decision.

(via New York Times)

The ruling exemplifies the push and pull between copyright law and the DMCA.  Still, if you operate a YouTube channel, you could still be subject to the takedown notice provisions of the DMCA.   Also, if you find someone taking your work without your permission, you could use the takedown notice to your benefit.