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Law Column: No such thing as a free lunch

footansteylogonew

Ripping pictures and video from social media may be tempting. But it may also be expensive. To misuse the old journalist’s adage (from back in the days of lunches), there’s no such thing as a free photo.

Ok, there are a handful of exceptions. But generally, where there is a photo or a video, there is also a copyright owner. Unless they have assigned the copyright in the image, the person who took the image will usually own the copyright. Therefore, ripping eyewitness video or pictures from social media can lead to an irate phone call and even a claim for copyright infringement.

When videos are posted to social media sites, the person who created the footage owns the copyright. By posting it, they have granted a licence to the host. Although images are shared on social media sites, this sharing does not normally mean that the copyright owner has granted a further licence to a commercial organisation such as a newspaper to republish the image.

As editors often find to their cost, if the image is published without the journalist or picture desk taking the necessary steps, the copyright owner will be in a position to ask for a higher fee for the picture than they would have if permission had been granted, and then claim additional damages in compensation for the infringement.

Photographers, who regularly find that their copyright is infringed, are understandably especially tenacious when it comes to enforcing their rights. They are professionals, and generally the payment they will claim if their material has been taken far outweighs what a news organisation would have paid legitimately.

The simplest way to avoid retribution is to find out who took the image and ask for permission to use it.  This may lead to a request for payment, but it may be possible to negotiate using the image in return for a credit.  When seeking permission it is important to confirm that the person who says they own the copyright actually does.  Additionally, it is important to be specific about what usage rights the person has granted, and to get that agreement in writing, for example by taking a screenshot of the interchange.

There may also be other ‘third party’ rights in the image or video, for example other images taken from music videos or posters may have been incorporated into it.

When a work is reproduced, for example an article or some footage, this copying is an infringement when that copying amounts to a ‘substantial part’. ‘Substantial’ is not defined in the relevant legislation in terms of percentages or numbers of words.  In a High Court case last year, a sports app which uploaded clips of Sky UK’s cricket matches was held to have infringed copyright by reproducing only eight seconds of footage. These short clips were found by the judge to be ‘substantial’ because they were key seconds in the matches. Therefore, the copying was both qualitative and quantitative.

For news organisations, the important exception to infringing copyright is ‘fair dealing’. In the news context, this exemption means that if part of a work is reproduced without permission, copyright will not be infringed so long as:

  • It is done genuinely for the purpose of reporting current events.
  • The material has already been made public with the consent of the owner (this includes ‘citizen journalism’ on social media sites).
  • It is accompanied by a sufficient acknowledgement.

This exemption does not apply to photos.

From a copyright point of view, it is always safer to embed a link than to publish the material on the newspaper’s website.

Once the copyright issue is taken care of, there are two further legal issues to consider before publishing: Data protection and privacy.

Even if the material has been posted to social media, some or all of it may still arguably private. A person’s photos and personal details are their ‘personal data’ and republishing them on a newspaper’s website, may go further than the data protection law allows. For example, publishing a person’s phone number or email address will probably not be necessary for a story, and could cause harm to the individual concerned.

In the same vein, the person who posted a photo or information may still have a ‘reasonable expectation of privacy’ especially if they are a private person and the material is personal.

Therefore, agreement should be sought from the person who posted the material, unless there is a public interest in publishing it.

It’s true – there is no such thing as a free lunch. But with a little bit of imagination and effort, the price of using other people’s copyright material can be made quite palatable!

3 comments

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  • February 14, 2017 at 7:57 am
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    This has been an accident waiting to happen ever since the many content chiefs who replaced proper editors with keyboard wizards,encouraged social media scraping to get quick ‘cheap’ stories and pictures,or RGC as they prefer to call it.This shortsighted and quick cost saving measure could and likely will have costly long term financial implications once someone succeeds with a legal claim thus opening the doors to anyone who’s own ‘content’ is published.
    Likewise the laughable practice of a junior sending a stock email to someone asking if they can use their picture in XYZ paper not only underlines the lazy approach to news gathering rife in most regional press group and could encourage the provider to ask for payment once published. This practice also results in an end product devalued both in terms of the appearance of the paper,full of readers own camera phone snaps,but also highlights how little original content is being used in something people are then expected to pay for.
    I firmly believe this whole issue is set ignite once one claim is upheld and damages are awarded,with others jumping on the bandwagon.This could be one very very expensive free lunch

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  • February 14, 2017 at 9:42 am
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    Unauthorised use of photographs is already costing newsorganisations money. They tend to settle before any legal action is needed; with people getting enough cash to make it worthwhile to chase hard.

    Put in a bill for £250 for a photo and see what happens.

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  • February 14, 2017 at 11:05 am
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    Once someone wins a case against a publisher watch the copycat claims pile up. The practice of trawling Facebook for news pieces,on the spot pictures and camera phone video as opposed to employing sufficient time served journalists to uncover or follow up news leads will prove costly once someone wins a claim.
    As many HTFP commentors have predicted all through last year,short term “get the job done quick and cheap” policies will prove costly long term unless a radical rethink by editors happens before rather than after a big payout is awarded.

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