By Matthew B. Harrison, Esq.
Photos & The Law dot com
as originally published in issue 219 of TALKERS magazine
SPRINGFIELD, MA — On May 16th, at 6:30 am Stefanie Gordon boarded a Delta flight from New York to Palm Beach. Somewhere along the flight, out the window of her airplane seat, she took a photo, tweeted it to friends when she landed, and then headed off to spend the day with her father. Gordon’s now-famous photo of the space shuttle Endeavour soaring through the clouds got her an overwhelming amount of attention but also landed her smack in the middle of an ethical and legal debate inherent to the future of the internet.
The photo was viewed nearly one million times, and has been showed by hundreds of news outlets around the world. She was paid by precisely five news organizations.
This was not the first time this happened. Janis Krum landed in the middle of the digital rights debate in 2009, when a passenger aircraft made an unexpected landing in the Hudson River. Krum took the one photo on his iPhone and instantly tweeted it from the ferry he was on a few feet from the plane, before helping passengers off the floating aircraft. He earned virtually nothing from his famous photo, which was copied and used by both commercial and private publications around the world.
While some think everything digital on the internet should be free, commercial outlets that sell a product using images and videos should feel compelled to pay for content they use.
This affects the broadcaster in two ways: first, there is potential liability for re-posting content that is found online; second, you need to protect your own original content before posting it online. And, yes, in today’s world of media convergence, photography falls into the elemental arsenal of radio broadcasters!
The mere act of taking a photograph grants the photographer copyright in the image Sharing it on a social media sites – in theory – does nothing to limit or reduce that fundamental right. So, unless the photograph is posted with a message that says, “copy this and pass it along” the photographer would maintain the copyright in the image. This applies to photographs, text, audio, or video content.
While copyright may attach immediately upon pressing the shutter or record button, so comes with it the cloud of legal uncertainty. Professional photographers are well schooled in controlling image distribution, but in the era where “everyone is a photographer,” it is often an amateur that shakes things up.
It is happening more often than ever that an amateur takes an amazing photo and does not realize its inherent value right away. Gordon immediately tweeted it, and that just let the floodgates open. People need to realize that their work – especially that which is newsworthy – may have value.
Amateurs probably wouldn’t consider this in the middle of such excitement, but it is possible to sell more valuable exclusive rights to a news outlet, or to find an agency to do the bidding for you. The days when Newsweek and Time magazine would fight over the rights to a photo with six-figure checks are dwindling, but there is still value in exploring value ahead of publication to social media.
News outlets can publish content under the theory that it is protected First Amendment speech. However, its application as fair use is widely debated. In a situation when a news outlet has no alternative access to an important image, they would be protected by fair use. However – those cases are much rarer than one would expect.
Meanwhile, retaining copyright doesn’t mean retaining all rights. A particularly vexing problem facing users of services like Twitpic involves the ever-changing fine print in the sites’ terms of service agreements. Both Gordon and Krum used Twitpic to share their photos. Currently, Twitpics’ terms of service informs users that the firm has the right to resell any images loaded by original rights holders onto its servers. In other words, Gordon has the right to sell her Space Shuttle picture, but TwitPic does now, too. They take an unlimited non-exclusive license to use the image – and by uploading it, you give them that right.
It is inevitable that amateur users will increasingly find themselves in possession of powerful, newsworthy photos and video content… and the temptation for professionals to use them without acquiring the rights – either claiming fair use based on their being newsworthy or the belief that since it was found for free on the internet, the creator doesn’t care about their rights in it – will only lead to future liability.