Copyrights and Social Media - Scott Hallenberg - Full-time Photographer | Surf and Snow Country Images (Everyday)

Copyrights and Social Media

As some may know, I'm a full time photographer and have studied Copyright Law extensively as it relates to my business and business processes.  Prior to becoming a full time photographer, I have taken graduate level Business Law courses that deal most with Intellectual Property. During my time as an Officer in the Navy (11 years) and 15+ years as  Project Manager / Consultant, I have spent extensive time reading and research laws, policies, and contractual requirements and applying those to operational procedures for organizations to follow.  This has involved asking the right questions, locating the definitive sources, and making adjustments when new information is discovered.  I am not a Lawyer and am not offering this as legal advice, I am just providing the information, rational and conclusions for your consideration.       

Because I'm a full time photographer whose about the rights of those in the community, I’m writing this because I see many in my community who may be willfully infringing upon other photographer’s copyrights by posting the work of others without permission.  More specifically they are appropriating the unauthorized works and publishing them in closed Facebook groups of hundreds or thousands to see in order to promote and advertise their projects. I am referring to the type of  post where the entire image has been copied as-is and minimal if any commentary is provided, but something like, “not my image, who who wants to collaborate?" accompanies the image .  I contend the use of this image is more consistent with an advertisement for the project and provides no publicly useful or beneficial  information. I also contend that images as advertising are considered a commercial application with benefits to the poster but not the community at large, at least not with the intended purpose of what Fair Use allows.   I'm in a  midmarket where I'll see the same post reposted into  several social media groups.  Often these groups are closed so only members can them, yet these groups comprise a significant portion of the creative population in my state.  The copyright owners of the image are not part of these groups and have no knowledge this is occurring with their work.

If you don't want to dive into all of this analysis and don't want to be at risk of a crime and other artists,  it's so easy to avoid.  It so easy to do the right thing by you, by fellow artist and community at large.  Just post your own work, or get permission from the owner of the work you'd like to post.  If you think of an image as someone's property (specially intellectual property), you'd naturally ask to use it, right?  Of course this based on your principles which varies by individuals.  In this discussion, I'm primarily addressing the legal component which applies to all US Citizens, it's not optional.  Following Federal Law is not something others can decide for use.  There are consequences if we choose not to follow the law.

The overarching question is, can the person posting this type of image prove it complies with Fair Use provisions of Federal Copyright Law?  If not, the  poster, (a.k.a., publisher of unauthorized unlicensed material) may be subject to financial and possibly criminal penalties if found to be infringing on another's copyrights.  Not knowing and willful ignorance of copyright law is not an excuse and is not a successful legal defense.              

I’ll speak to the legal side of this in a practical pragmatic way which should no way be construed as legal advice because as photographers it is important for you to under copyright law and its limitations.  If you follow my conclusions you will have no legal copyright risk, but if you are trying to thread the needle in using unauthorized images and argue your use complies with fair use, I suggest you find a quality attorney in IP and Copyright Law as doing this on your own or trusting the advice of others on the internet may find you in legal jeopardy defending your use of some else's copyrighted material, you may find your self being sued by all whom you are poaching.    Essentially you'll have to convince the Judge "why it was okay for you to steal this time."       

But before I get into all that, it does make me wonder why a photographer who is suppose to pursuing creative endeavors results to this tactic of posting someone else’s images to get support for your own projects. It’s one thing to study other’s works and quite another to copy them and post for hundreds if not thousands to see as a promotion for a project.  Why wouldn't the photographer post examples of their own work for their project?  Would they and their creative team be better served?  Wouldn't the creative community be better served if people posted their original material?

For photographs, Copyrights begin automatically at the instance where the camera shutter is pressed the shutter (where the image impressed into it's medium)   and lasts for 70 years after the copyright owner’s death. Typically, all of this applies to the photographer, but in some cases the photographer is in a "work made for hire" situation is which the the photographer has formally transferred their rights to a 3rd party in which case that third party is now the copyright owner. I can’t think of too many rights that have a longer duration, so this a pretty big deal. Photographers do not even have to know their images are copyrighted for them to be copyrighted. Copyrights are automatic, the photographer does not have to apply or register their images for them to still be copyrighted but it they do that gives them a higher value should they have to defend them in court.    

Many high end commercial and commissioned editorial and top photographer's work to fall into this category of registering their images with the Library of Congress which allows them to value the worth the image at a higher value.  I'll repeat that it is not required for the image to be registered for the actual copyright be established. Keep in mind that most of the work that is being appropriated without permission or license is that of  well known and registered images which means those images may have considerable value.             

So, photographers or others who insist that it is okay to post unlicensed images in this manner insist they are doing under the limitation of Copyright law, known as "Fair Use". According to Stanford Law, (https://fairuse.stanford.edu/overview/fair-use/) Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. From the source itself (https://www.copyright.gov/title17/92chap1.html#107),

“The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is  fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

And a more detailed look of the four factors in the Gov document can be found here: https://www.copyright.gov/fair-use/more-info.html.

Since Fair Use  is a “defense” or narrow exception to copyright infringement that has to be justified based on the four factors defined in the fair use section of US Copy Right Law, also in my analysis. The only way a poster can provide a defense to copyright infringement is to demonstrate how their use of the content meets the four factors. Only they can do that because only they know the intent behind their decision to post it. If they have no clue about Fair Use or rationale for why their use is allowed, then they are simply infringing on the rights of Copyright owner and their legal risk increases. In the Napster case (link below), Napster and it’s user community assert they were using the Music under fair Use, but there assertion but was ruled not Fair Use. It’s also been started that they fair use criteria is applied subjectively, and is not a formula, so a use cannot simply check the box, and arrive a Fair Use determination. This is quite logical when you think about it.  Someone  challenged with copyright infringement,  should expect questions something like this:

1. Do you own the image? if the answer is "no", next question.

2. Do you have permission from the copyright owner to use the image? answer "no"

3. Does your use meet the fair use criteria as defined in Copyright Law?

     a) I dunno know….stop wasting the courts times, the criteria is established in the law and it’s your obligation to prove that. Court finds for the Copyright Owner.

     b) yes or maybe — tell me why. That’s where the rationale in relation to fair use criteria is supplied and if there is a relevant legal precedent that may be considered, too. I would suggest that in cases where there is no concrete argument for Fair Use criteria, the case would be settled and never reach court as the costs/penalties would increase with no logical defense.

While I contend and others I've consulted with generally agree,  two of the four Fair Use factors, 2 and 3, clearly don’t support Fair Use for this scenario as the poster uses  an as-is image (meaning the copied the entire image), with no relevant commentary, All the commentary is about the future event they are promoting not about the image itself.  However it is worth exploring Fair Use Items one and four more closely. In item one "Purpose of Use", some have claimed they do this for “nonprofit educational” purpose or for non commercial purposes. Checkout this source where it clarifies a variety of points but item 18 speaks directly to the Nonprofit Education aspects http://www.publiccounsel.org/tools/publications/files/fairuse.pdf


A recent case which be also be  precedent that deals with the first of the four factor this ruling deals with by emphasizing the importance of adding transformative qualities when using unauthorized images whether or not it’s for personal or commercial purposes and this is consistent with Stanford Law resources too:

https://fstoppers.com/news/giant-media-conglomerate-violates-copyright-federal-judge-sides-photographer-317124?fbclid=IwAR2wCixYLz-tZw2LwPXXhPTQeP4lIaM6pZIu8ypL1Ne-7qjy9gb-gfvALkk  and here is amore detailed analysis of each of the four factors which are quite similar to the circumstances in question here:  https://www.lexology.com/library/detail.aspx?g=42e3c1e5-a02f-4308-ba61-fa8d7aa83e71

In his ruling, U.S. District Court Judge stated on behalf of the copyright owner,  “stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose — regardless of whether that photograph was created for commercial or personal use....allowing a news publisher to poach an image from an individual’s social media account for an article that does little more than describe the setting of the image does not promote ‘the progress of science and useful arts.”  Naturally a post that says nothing about the exact image post adds even less transformative and less useful for public benefit.

If we were talking about just using the image in a workshop where the photographer and few students evaluate the unauthorized image and experimented with different lighting, lens and other factors in comparison to the image has a better chance of Fair Use but only in the workshop, not as promo material in the announcement.  Of course if it's money is paid for the work shop and if the images used as marketing collateral (portfolio that clients see) by anyone in the workshop afterwards then that is more likely to be considered commercial in nature.                    

We’re left with does noncommercial use apply? So the question becomes "is the use non-commercial?" which is defined in the Creative Common’s language (https://wiki.creativecommons.org/wiki/NonCommercial_interpretation) as, “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation” which is somewhat gray especially when the work will be used for improving a portfolio or for not paying for talent that might normally be necessary, does this provide competitive advantage by lowering their cost structure. For some photographers who are students of programs or only shoot as a hobby, it may be determined this use fits Fair Use,  based on Non-Commercial nature in balance with the other factors . According to the Public Counsel (http://www.publiccounsel.org/tools/publications/files/fairuse.pdf) they have this to say about NonCommercial use , “This is an important – but not determinative – factor in the fair use analysis. A judge may take into account whether the alleged infringer made money from the use or if there a commercial motive. However, a judge must look at all of the other factors, and these may sufficiently weigh against a noncommercial, nonprofit, or educational use.” and from Copyright.gov in reference to a commercial or noncommercial determination, “courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair use. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”  Clearly nothing "new" is being added to the image when it is posted in this manner.  As mentioned, some confuse the post using the unauthorized image     with the project itself.  The post is what is being discussed here as it what is seen by the 100s or 1000s for people in the closed groups.   The project itself consists of only a few people in which only those people benefit, not the larger community.  Many times, the product produced becomes marketing collateral for members of that group, particularly if one or more of the team makes money from their creative talents (i.e. photography, hair, makeup, modeling, styling, designing, etc.)

So now,  let’s look at the fourth factor which is the effect on the potential use of the copyrighted work and according to Copyright.gov (https://www.copyright.gov/fair-use/more-info.html) “Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.”

An important point, is that if someone appropriates an image without knowing the source, it is difficult to know the commercial uses of that image. Some photographers sell images for other artists to use as reference images. Many stock photography have made an industry of this. As artists and influencers are finding ways to monetize their posts on social media where “likes” , "followers" and engagement for an artist can lead to higher monetary value. A copyright holder maybe using their images to increase their attractiveness so if the image is “delinked” and pasted into another platform they are deprived of the likes and engagement they would have been afforded. A single post can range from $10 to thousands of dollars. For the most relevant social influencers it can be in the upper 6 or even 7 figures.  Ref (http://www.businessinsider.com/inkifi-website-tells-you-how-much-your-instagram-posts-are-worth-2017-11) If an authorized used of an image were widespread use the lost value to the copyright owner  multiples. So in a facebook group with 10,000 members a copyright holder could be deprived commercial benefit from their work.  Below you'll find a link to the Napster case (free music sharing), where both Napster and the users actions were found NOT to be considered Fair Use as they were freely sharing the music, but without authorization from the copyright owners.

The copyright holder may be able to successfully argue that they could have offered that same sort of portrait service but because of this post where you will be doing it “non-commercially” or collaboratively it erodes the potential market for the copyright holder. While all situations are considered on a case by case basis, without a “transformative” quality that benefits the public, all the case law I have reviewed fails the test for Fair Use as it seems to be given the heaviest weight. Just because the poster claims it’s noncommercial work with no commercial impact to the copyright holder, has Factors 2 and 3 clearly on their side and strong arguments for factors one and four. I just can’t help but think a Judge would wonder why a photographer would find it so critical and in the public's interest to use an unlicensed image from another photographer, limiting their copyrights.

Also take a look at the Napster ruling where they were denied Fair Use by it's users as they claimed non-commercial use. In this scenario, because the post announces a project and seeks participants, it provides no information of public benefit about the image in question.  Using the image is self serving to the one posting the unauthorized image.  It  does not educate the community about the image in anyway, so it cannot be considered educational in the post.  The image is simply an attention getters, the same as a common advertisement. 

Traditionally, News Organizations are able to use images with out permission when reporting the story.  Generally, commentary and the image inform the public.  However, when news organization promote or advertise their outlet the same image is no longer allowed to be used.  Many news outlets use stock images in their reporting which allows them the ability to acquire the licensing if they want to continue using the image for promotional or other commercial purposes.       

Given all of that, legal consideration that you have to determine whether your situation meets fair use, while keeping in mine the copyright holder does not have to prove they have the copyright, remember it's automatic.,  there are still at least two more  hurdles worth considering. 

Facebook requires you certify you have the rights to grant them when posting to Facebook under their terms of service. Fair Use is a narrow limitation to Copyright Law so even if you have a legitimate Fair Use right, you still don’t have all the rights necessary to grant to Facebook. Their terms services are one layer designed to ensure lawful use of their platform.

And, there should also be consideration given  to the subjects in the photo? Unless waived, they may have certain rights to how their images are used. They may even have limitations to where these images may be published. Without gaining permission from the copyright holder it’s impossible to know these things. For instance when posting a picture with what appears to be a young model, what if she is an actual minor whose parents parents have not given you any permission? You are responsible for defending the work you are posting that is not yours and the source for which you obtained is not a valid defense, so you can’t blame the source from where you took it….kind of like selling stolen property.  

As mentioned, all of this is a real headache.  The good news is it can simply be avoided by erring towards  respecting other’s copyright as you would like your’s respected.

Recommendation (Not Legal Advice):

If you absolutely have to use a particular image and can’t locate the copyright holder or the source, do something to it that is transformative in nature. Adding insightful critique, deconstructive analysis about a variety of the elements of the photograph would add public value more consistent with the intent of Fair Use. To the degree you explain you are doing this for non commercial reasons and that you believe the post complies with Fair Use and supporting rational, it goes a long way and sets a good example. While this still may not be enough it can’t hurt and it shows your attempt to strengthen your Fair Use claim.

Here's a post that provides practical consideration, directed towards admins / moderators:

http://www.adweek.com/digital/do-the-research-before-posting-a-photo-from-the-web-on-facebook/

It is a safer and arguably a more respectful endeavor to gain permission from the copyright holder to use their works in your projects….you may learn something during the process! As easy as it is to digitally appropriate your works for your use, it has never been easier to connect with original creators from all over the world. If you can’t get permission, you can generally copy and paste a link to the source preferably or at least to where you found the work.  Links are not copyrighted, but pay attention as there are some new case law speaking to these, too.  I personally think this is showing more good faith to credit the copyright holder and it reflects the work as it was intended with all of the metadata intact.  Links are pointers to the content not the content itself.    Links to the source are best as the original creator get promotional / commercial value and again you may learn something from visiting the source.  Within platform like Facebook you can usually "share" images, posted by the copyright owner.  The "share" function retains the integrity of the image with that of the copyright owner and is part benefit to the copyright owner signs up for when posting their content.

Conclusion:

If you read between the lines there is some irony with the entire situation.    Photographers are suppose to be pursuing creative endeavors and if they cannot find a way to create a conceptual image to attract others to their own projects without using the advertisement value from another, I contend they are misleading others whom they seek to collaborate with and others they attract by virtue of the post. I also contend that if they can't produce a photograph on their own to use to promote their photography, they are effectively acknowledging the copyrighted image is providing them benefits that should be paid for. As a commercial photographer, I provide businesses photos for the promotion, just like this scenario, reiterating there is monetary value to the photograph used and is deprived from the copyright holder.  I have also been paid by painter to produce reference folder among other social media influencers.  There is a  market for this sort of thing.

In all of my research I have found numerous examples that suggest when in doubt don't infringe on other's rights.   If you are going to proceed assuming you meet the Fair Use criteria, do yourself a favor and conduct a self assessment of Four Factors  (the Stanford references are the most straight forward) as it will be up to you to convince the judge that you are not infringing on copyrights, not the the other way around.  Any good faith effort along the way can only help your case.  A cavalier, lazy or ignorant approach can only be detrimental.  The judge will look at the four factors but can include  other intangibles, too.

If someone tells you your post meets the Fair Use criteria, you cannot trust that advice unless they are a judge ruling in your favor in court or in arbitration.  The Law states that every Fair Use claim is treated on case by case basis and will be based on the Four Factor Framework that the judge will be use to make a Fair Use determination.  If you take that advice you may find yourself in legal jeopardy. 

Next, if someone advises you to find another way to make a post so as not to rely on a Fair Use determination or infringe on another's copyrights, they may be suggesting you put in a little extra effort but they will be helping you stay out of legal trouble and be more aware of the issues artists face in protecting their copyrights.  So even if you feel your post of unlicensed work meets the majority of the four factors framework, you still could be sued by the copyright holder and be forced to prove that you have met the Fair Use criteria.  If you win, you get to keep the post (though still have to pay for your legal costs).  If you loose, you may be found to have infringed the copyrights and be subject to financial and even criminal penalties.  The copyright holder regardless of outcome will retain their copyrights and will have no financial liabilities to you even if you win your case.  Status Quo is the best possible outcome you can hope for in a Fair Use claim and it does not guarantee future determination in a similar situation as all cases are considered independently according to Federal Copyright Law.

If all of this makes your head spin, fear not, there is an easier way!  Why not just get permission or create your own reference image for your own projects? That way you don't have to worry about legal liability, as all of the work you are posting is your own copyright. Plus you’ll probably learn a heck of a lot more. You'll be giving something new to the world as well.  Seems so easy just to do the right and respectful thing, is this crazy talk?

If you run across any case law pertaining to photographers using other's work for their inspiration, please let me know one way or another?  I'm always willing to update my opinions when new information surfaces.  As I have done considerable research, there may be a lot more that I just haven't seen.  Thanks!!!


Relevant Precedents:

Graham vs Prince (Richard)

https://copyrightalliance.org/ca_post/fair-use-graham-v-prince/

In this precedent, Prince copied  a post with comments and the copyright owner's (Graham) image.  The court ruled this was not transformative enough even though more material than just the image was included.  They applied all four factors and found Prince failed on all four.  We don't know how they would have ruled if he had passed one, but it stands to reason the more factors it passes the better the chance it will be determined fair use.  Since some argue that the fourth factor is the one hardest to evaluate, but in this case they concluded that because the target market for both were similar then Prince's use did deprive Graham of value.  I contend that when photographer copy images from one internet source and post somewhere else on the internet they too are depriving the copyright owner of that reach as they are working with a similar market.  These images could be purchased by photographers as references or by large and small businesses to drive internet engagement which is the purpose of promotional images on the internet.   I suspect in the scenario described here the court would rule the same way, especially as the image copied as is with not effort made to make it transformative in anyway.     However, even if they found the circumstances different enough, it would likely effect only one factors  and not likely in compelling way to yield an overall Fair Use determination.    Only a court can make the fair use determination but the scenario in question is so closely related why take the chance?   Just post your own work and there are not of these issues.                                       


Napster Ruling (online free music sharing): https://www.nytimes.com/2001/02/13/business/napster-decision-overview-appellate-judges-back-limitations-copying-music.html

Of note this case was on a very  large scale with players had deep pockets. As you read through it you will see that even Napster’s Users (non-commercial) were deemed as violating copyrights and their use was not considered Fair Use. Of note, Facebook has terms of services that require the user to own the copyright or have permission to the content when you post. RIght off the bat, you are violating Facebook’s terms of service in addition to the copyright owner.  


Useful links:

https://fairuse.stanford.edu/overview/fair-use/four-factors/

Some q&a:  https://fairuse.stanford.edu/2003/07/06/how_i_learned_to_love_fair_use/

https://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/

Discusses 6 figure penalties for willful infringement

https://www.ipwatchdog.com/2017/12/15/photo-sharingsocial-media-copyright-infringement/id=91022/



FAQ- NonProfit Education coverage: http://www.publiccounsel.org/tools/publications/files/fairuse.pdf 

https://www.ldsbc.edu/copyright-decision-guide.html


Primary Sources: 

https://www.copyright.gov/title17/

https://www.copyright.gov/title17/92chap1.html#107

https://www.copyright.gov/fair-use/more-info.html


Facebook Position Copyright and Posting of photos:

https://www.facebook.com/help/www/1020633957973118?helpref=about_content

https://www.facebook.com/help/337995452911154?helpref=faq_content  FB Fair Use


Pinterest Terms of Service requiring use to use content only on the Pinterest Platform and encouraging users to respect Copyright of others:


https://policy.pinterest.com/en/copyright

Scroll to the bottom of this page:

https://help.pinterest.com/en/articles/copyright-faq


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