rights for photographs

Last week, a US District Court Judge in the influential Southern District of New York issued an opinion finding that the fact that a picture of New England Patriot quarterback Tom Brady that was displayed on the websites of a number of media defendants was potentially infringing – even though the photo was not copied by the website owners and hosted on their servers. Instead, the photo was “embedded” on the websites and actually came from Twitter where it was hosted on servers maintained by that company. The Judge determined that because the photo automatically showed up on the defendants’ websites when those sites were visited by members of the public and appeared to visitors to be an integrated part of their websites, the mere fact that the photo was not hosted on the servers of the defendants, but instead on the server of Twitter, was not enough to provide a defense to the claim that the defendants had displayed the content without permission of the copyright holder. The right to “display” a copyrighted work is an exclusive right given to the copyright holder under Section 106 of the Copyright Act, meaning that the copyrighted work cannot be displayed without the permission of the copyright holder. As we wrote here, here and here, there have been many cases where photographers have sued broadcasters and other media companies for posting photos on their websites or even on their social media feeds without permission.

It had been widely accepted for the last decade that website owners were safe from copyright liability if they merely embedded content that was served from another site (e.g. social media sites like Twitter or YouTube) as contrasted to actually hosting the content on the website owner’s own server. This feeling of security stemmed from a case last decade where the 9th Circuit Court of Appeals made the distinction between hosting content and merely linking to content on another site. In that case, the Perfect 10 case, the defendant hosted an image search site with thumbnail images of pictures (the thumbnails hosted on the site of the defendant), and when a visitor to the site clicked on the thumbnails, the image was expanded by launching the image on the hosting site. In that case, because the large photos that were displayed when the user clicked on the thumbnails were hosted on the plaintiff’s site, the defendant was not found to be infringing for displaying those larger photos. The Judge in last week’s case found some striking differences in the use of an embedded Twitter photo case that, she said, made clear that there should be no clear safe harbor from liability simply because the image was hosted on a site not owned by the defendants in this case.
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Almost every week, we write about some legal issue that arises in digital and social media – many times talking about the traditional media company that did something that they shouldn’t have done in the online world, and ended up with some legal issues as a result. Two weeks ago, I conducted a webinar, hosted by the Michigan Association of Broadcasters and co-sponsored by over 20 other state broadcast associations, where I tried to highlight some of the many legal issues that can be traps for the unwary. Issues we discussed included copyright and trademark issues, a reminder about the FTC sponsorship identification rules for online media, FCC captioning obligations, privacy implications, as well as discussions about the patent issues that have arisen with the use of software and hardware that makes the digital transmission of content possible. Slides from that presentation are available here and, for the full webinar, a YouTube video of the entire presentation is available below which can be reviewed when you have some spare time over this upcoming holiday or at any other time that you want to catch up on your legal obligations.

Some of the specific issues that we talked about are familiar to readers of this blog. We discussed the many issues with taking photographs and other content found on the Internet and repurposing them to your own website without getting permission from the content’s creator (see our articles here and here). Similar issues have arisen when TV stations have taken YouTube videos and played them on their TV stations without getting permission from the creator. Music issues arise all the time, especially in producing online videos and creating digital content like podcasts, as your usual music licenses from ASCAP, BMI, SESAC, GMR and SoundExchange don’t cover the reproduction and distribution rights involved when content is copied or downloaded rather than live-streamed (see our article here). The presentation also cautioned companies to be careful about trying to rely on “fair use” as there are no hard and fast rules on when a use of copyrighted materials without permission is in fact fair (see our articles here and here on that subject).

Similarly, there are many other potential pitfalls for digital media companies. We’ve written about some of the FTC rules on requiring sponsorship identification on sponsored digital content – even tweets and Facebook posts (see our articles here and here). Plus, there are always issues about privacy and security of personal information that sites collect – and particularly strict rules for content directed to children. And, as many stations found out when a company asserted patent infringement claims about digital music storage systems used by most radio stations (see our articles here and here), patent issues can also arise in connection with any companies use of digital media.
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Tomorrow afternoon eastern time, I will be conducting a webinar for at least 20 state broadcast associations on legal issues for broadcasters in their social and digital media efforts.  We’ll talk about many of the potential legal landmines that can be hidden in these new media efforts, many of which we have written about

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?
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In the last few weeks, we’ve seen almost daily press reports of new lawsuits against media companies being sued for the use of photos on their websites without permission of the photographers. We’ve written many times about copyright issues that can arise if media companies put content on their website without getting permission of the copyright holder. Most recently, we wrote about the legal issues that can arise by taking photos or videos from Internet sites and reposting them to your own site, or using them in on-air productions. We’ve also written articles about how your ASCAP, BMI and SESAC license don’t give you rights to use music in video productions or to post online music that can be accessed in any on-demand fashion – so that such rights have to be cleared directly with copyright holders for such uses – including the use of music in podcasts. Even though these concerns exist, some copyright holders have been reluctant to sue, as litigation over these matters sometimes costs more than the likely recovery (though broadcasters, too, are concerned about litigation as the costs of defending against such a lawsuit can be very high). One idea has been kicking around for a long time – some sort of small claims court for resolving smaller copyright claims at less cost to the parties. Last month, a bill was introduced in Congress to create such a court – a new Copyright Claims Board.

The bill was sponsored by a single Congressman, and has thus far received the support of only a single co-sponsor. Given the time left in the current Congressional session, it would be unlikely to go any further this year. But with a promised examination of the Copyright Act generally on tap for the next Congress, some part, or all, of this proposal might again see the light of day next year. For a bill sponsored by a single Congressman, introduced late in the Congressional session with little time for approval, the bill is actually quite detailed, setting out a complete structure for the new court, as well as specific procedures that would be followed by any copyright owner seeking to adjudicate their claims through this new process.
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Everyone who has a computer, smartphone, or other Internet-connected device has probably spent at least some time perusing photos or videos of cute pets or babies, or of the latest amazing (or sometimes amazingly stupid) things that people do. Broadcasters, in particular, with an audience to reach both through their over-the-air facilities and on their websites and mobile apps, may well want to share the content that they have found online. But, a recent spate of lawsuits filed against radio broadcasters for using photos on their websites without permission makes clear that this can lead to issues if done without permission. There have even been claims made against TV stations for taking video found online and repurposing it over-the-air or online as part of their locally-produced programming. Just because someone has posted photos or videos on a social media site does not give anyone else to take those photos and use them in other media. When an individual posts something on a social media site, what they have done is to give that site the right to use the material that they have posted in accordance with the rules of the site on which they have been posted – but the mere fact that a photo or video has been posted on one of these sites does not give others the rights to take those photos and videos and use them elsewhere.

When I make a statement like this in one of the many seminars that I have done on digital media issues, people are always quick to jump up and say – “but isn’t the Internet all about sharing?”  While in some ways it is, it really is more a medium for the dissemination of content in one way or another.  And just because a creator of content wants to share that content in one fashion does not mean that the content can be reused by others in a wholly different context.
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The use of photographs on websites continues to be an issue. According to trade press reports, lawsuits were filed against two broadcasters for the unauthorized use of photos on websites, though one suit was quickly dismissed as the named broadcaster in fact had purchased rights to the photos through Getty Images, a clearance house for the rights to use photographic images. But the filings of these lawsuits, along with other suits we wrote about here filed a little over a year ago, highlight the concerns that any company should have about the photos that are found on their websites. I highlighted these issues in my digital media presentation for broadcasters, which I wrote about here just two weeks ago.

Photos that are found on the Internet cannot just be copied and posted to your own website without getting permission from the copyright owner. Contrary to what some might think, unless necessary permissions are obtained, everything on the Internet is not free to exploit on your own site. I know of many broadcasters who have received demand letters from the owners of photographs that have been copied from some website and re-used on the broadcaster’s site without permission. Many have settled with the copyright holder to avoid the fate of these broadcasters who were recently sued – so take these demand letters seriously if you receive one.
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What legal issues should a broadcaster be concerned about when expanding its use of digital media?  Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media.  While this presentation was made to college broadcasters, most of the issues discussed

We have written in the past about the concerns that broadcasters face about the unauthorized use of photos on station websites. Some broadcasters have had problems when they found that photos posted on their websites were posted without permission of the copyright holder – and representatives of the copyright holder contacted the stations with demands for significant compensation. We reminded broadcasters that everything that you find on the Internet cannot be appropriated for your own uses – that copyrighted material retains copyright protections even when it is made available on the Internet. It appears that this is not an isolated problem, as the Copyright Office has just announced the commencement of a study to determine how best to protect the copyrights of photographers and those who produce other digital images. In this digital age, when photos and other images can be copied and reproduced digitally, distributed on websites and through other digital means, often stripping out any embedded information about the copyright owner, problems in copyright enforcement are common. The Copyright Office seeks information both from copyright owners and from users of such images on how to best protect copyrights, while at the same time making it possible for users to obtain clearances for photos that they want to use.

This issue for broadcasters actually cuts both ways, as broadcasters themselves create photos and other images it their news coverage, and in connection with other station activities and events. They don’t want these images exploited by competitors and other media sources without permission. So legal clarity could be a good thing, as it will not only to help broadcasters clear rights to use photos and other images online and in their over-the-air broadcasts, but it will also help them to protect the images that their employees create in the course of their broadcast employment. What does the Copyright Office ask?
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Social media and other digital platforms are playing a more and more important part of the business of traditional media companies.  In the last few weeks, I’ve participated in two seminars, looking at the legal issues that arise in these areas.  At the Winter Convention of the Wisconsin Broadcasters Association, I conducted a seminar outlining the legal issues that broadcasters need to consider in their digital media endeavors.  The slides from that presentation are available here.  We talked about many issues, some of which I write about regularly (e.g. music rights), and others that I will write about more in coming weeks, including privacy, online sponsorship attribution, user-generated content, and other issues that arise in the online world.  One issue that we spent a significant amount of time discussing was copyright – including specifically concerns that can arise when stations take content found on the Internet – pictures, videos, music or other creative works – and appropriate it for their websites or other digital properties, without bothering to get permission. 

Many broadcast employees, as well as many others throughout society, think that if something is on the Internet, it is there to be used by others, and no rights need to be obtained to use that material.  That is incorrect, and can get users into trouble.  In recent months, we have seen many lawsuits filed against broadcasters, including against some of the biggest broadcasters in the country, over improper use of photographs found on the Internet.  What often happens is that someone at a station is putting together some content for a station website – say the arrival in town of some band whose music the station plays.  Rather than calling the band’s management company or the concert promoter to get pictures to use in the article about the artist or the upcoming show, the station employee finds some picture on the Internet, copies it through a simple mouse click or two, and pastes it onto the station’s website.  A few months later, a cease and desist letter arrives, or worse, an immediate demand is made for a significant sum of money, claiming that the use of the photo infringed on the copyright of the photographer who took the pictures.  How can this be, asks the station employee?  When someone posts something in the Internet, isn’t it free for anyone to use?
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