rights for photographs

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This week, there was a report in the broadcast trade press about a lawsuit filed against a North Dakota radio station for allegedly posting on its Facebook page a copyrighted photograph of a well-known rock musician– without getting permission from the professional photographer who took that picture and owned the copyright.  This was not a situation where some listener posted a picture on the station’s site, but allegedly one where the radio station posted on its own Facebook page the photo to illustrate a post on that site.  We have written many times about how litigious photographers can be about the unauthorized use of their photos online (see, for instance, our stories here,  and here).  And we have also written (for instance, here) about how the unauthorized use of copyrighted photos and videos even on the social media sites of broadcasters and other businesses can raise many of these same issues.  But, as it has been a couple of years since we last posted on the topic, it seemed to be worthwhile to highlight these concerns once again. 

The unauthorized use of photos in social media posts, including tweets on X and posts on Facebook, can really be an issue for all sorts of businesses.  Even the Donald Trump campaign was reportedly sued during his first run for President for his son’s tweet of a photograph of a bowl of Skittles, which he used to compare Syrian refugees to the candy treats. As we have written before (see our posts here and here ), 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.  Just because you can easily right-click an image to make a copy of it does not always give you the right to use that image for your own commercial purposes.  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?

Continue Reading Using Photos on Social Media Sites Without Permission Can Cause Legal Headaches

We’ve written many times about the perils of posting a photo on your website without getting permission from the photo’s owner (see, for instance, our articles here and here).  Copyright protects photos, even when they are shared on the Internet.  Just by posting a photo to some website does not mean that the owner has given up its copyright protections – and just because you can easily right-click on the image and paste it on your website doesn’t mean it is legal to do so. If you copy a photo for use on your site without permission, you should not be surprised to see a copyright infringement claim seeking damages – potentially big damages.  To avoid issues, many website owners look for ways to get permission to use photos, signing up for subscriptions from stock photo services or, often when trying to save money, relying on photos made available through some “creative commons” license.  However, relying on the creative commons license can be perilous.  One example is a recent US District Court ruling on a motion for summary judgment of a copyright lawsuit brought by a photographer when his photos of Willie Nelson and Carlos Santana appeared on a news website to illustrate articles on the musicians.  Anyone with a website should read this decision, as it addresses in detail not only the issues with these creative commons licenses, but also many of the other legal issues that arise in lawsuits about the unauthorized use of photos.

In this case, a local news website had used photos that were freely available on a creative commons site and were widely circulated on other sites.  But when they were posted to the defendant’s site, there was allegedly no attribution of the photos to the photographer and no link to the photographer’s own site, which were preconditions to the creative commons license.  Because the defendant did not follow the terms of license, the court found that the license was not effective.  The fact that these photos were otherwise widely available on the Internet similarly provided no defense to the infringement claim.  Relying on a creative commons license without scrupulous attention to any license requirements can lead to legal actions like the one brought here. In fact, the decision suggested that this was not the first lawsuit brought by this photographer, and as we’ve seen in past cases, there is no shortage of other photographers ready to make claims against those who use their work without an effective license.
Continue Reading Using Photos on Your Website – Court Decision Highlights Problems with a Creative Commons License and Other Copyright Issues

Almost every broadcaster and other media company uses digital and social media to reach their audiences with content and information that can be presented in ways different than those provided by their traditional platforms.  Whether it is simply maintaining a website or streaming audio or video or maintaining a social media presence to reach and…

In an interesting Court decision from the Southern District of New York, a judge dismissed a lawsuit brought by a photographer for the use of her photo without permission by the website Mashable.  Mashable defended against the claim by arguing that it did not need a license directly from the photographer as it had not posted her photo on its website but had instead embedded that photo using an API from Instagram.  An API allowed the photo to display on the user’s computer with content from the Mashable site, even though the photo was actually coming from Instagram.  Thus, Mashable did not itself host the photo – the photo was hosted and served by Instagram pursuant to the rights that the photographer had granted to Instagram by posting a public photo to that site.  As the Instagram Terms of Use give the company a license to make photos posted on its site available through its API, the Court found that the use of the photo by Mashable was permissible as it had a valid sublicense to use that photo from Instagram through use of the API.  As it had a valid sublicense, it did not need a license directly from the photographer.  The photographer had authorized Instagram to sublicense her photos by agreeing to Instagram’s Terms of Use and not restricting the viewing of that photo to private groups.

This Court’s decision is interesting for two reasons.  First, it seems to contradict a decision about which we wrote here that suggested that the use of an embedded photo was not enough to defeat a claim of liability where the embedded photo was posted on a site to appear to the public to be part of that site.  That other decision focused more on how content appeared to the end-user than it did on the issue of a sublicense as does this case.  Even so, it is likely that there will need to be more litigation and some higher court decisions before there is any final resolution of just how safe it is to embed content from a social media site on your website without permission of the creator of that content.
Continue Reading Court Decision Dismissing Photographer’s Lawsuit Shows Breadth of Rights Granted to Social Media and Denies Infringement Claim for Instagram Embedded Photo

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.
Continue Reading Court Finds That Embedded Twitter Photo on Website May Subject Website Owner to Copyright Liability – Be Careful What You Post

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.
Continue Reading Legal Issues in Digital and Social Media – Identifying the Landmines for Broadcasters and Other Media Companies – A Video Webinar

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

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.
Continue Reading Congressional Proposal for Copyright Small Claims Court – What Does It Suggest?