Social media creates copyright problem

Photographers struggle to recoup fees when photos go viral
Feature
Page Number: 
25
Latara Appleby

Sara Lewkowicz

Photojournalist Yunghi Kim discovered earlier this year that many of the news photographs she had taken over the years, including images from war-torn Rwanda and a project in South Korea, have been used by a number of websites without her consent. Kim estimates one image alone, had it been properly licensed, could have earned her $14,000.

“If it’s acceptable that that is the norm, then we won’t survive,” Kim said. “No industry survives with giving their product away.”

While photojournalists have always battled with protecting their images, the rise of social media, especially photo-based sites such as Pinterest and Instagram, has made it easier to distribute unlicensed work. It is easier now than ever for a photo to reach a massive audience.

But photographers are not without recourse, and can often take action to stop improper uses, if they know their rights.

Photographers aren’t just concerned that they won’t be paid for their work. They’re also worried that their photographs will be used in a way they would not like, such as on blogs they would not support.

Sara Lewkowicz, a grad student at Ohio University, had a similar experience when she was photographing a story about a man readjusting to life after being released from jail. While working on the story, the man she had been following began to physically assault his girlfriend. She caught it all on camera. Lewkowicz’s images spread through the Internet. She called the experience both “nerve wracking” and “infuriating” and worried that it could influence exclusivity agreements she had entered into.

Lewkowicz said no one wants to feel like their work is no longer under their direction.

Kim echoed this concern. “It bothers me that my images may be used as propaganda on some blog,” she said.

“Unfortunately, most people think the Internet is public domain,” said Mickey Osterreicher, general counsel of the National Press Photographers Association. Work in the “public domain” is no longer protected by a copyright — such as work that was created so long ago that the copyright has since lapsed. He said photographers can spend an “inordinate” amount of their time policing their images.

Yunghi Kim

Protecting your work

Osterreicher said there are ways photojournalists can protect themselves, and he recommends that they register their work with the U.S. Copyright Office as a starting point, which enables them to collect attorney fees and statutory damages should copyright infringement occur. Photographers can batch register work with the copyright office through an online service called “eCo,” for Electronic Copyright Office (eco.copyright.gov). Using an eCO form and completing the process online is recommended. If that is not possible, photographers can also fill out hard copies of the paperwork and return it, along with two copies of the images and payment of an applicable fee to the Copyright Office.

Photographers have to take an active approach in looking for their work online and contacting the web organizations when they see images being used without their consent, Kim said.

“The burden is being put on the creators,” Kim said. It is up to the photographers to police their work and communicate with websites about either taking down their images or properly compensating them.

Photographers can file a Digital Millennium Copyright Act takedown notice requesting that the images be removed. The Digital Millennium Copyright Act provides a “safe harbor” provision for publishers that minimizes their liability for posting the copyrighted works of others. To qualify for that protection, the publisher must be unaware that the material infringes on a copyright and, once they are made aware of the issue, they have to move quickly toward taking it down.

Publishers must also have a policy of terminating the accounts of people who repeatedly use copyrighted works unlawfully. The providers must have “notice and takedown” procedure posted on their website. The provider must respond to the takedown request within five days.

According to the law, the photographer, or any person whose intellectual property is being infringed upon, must notify the Internet service provider of what is happening and identify the works. They have to give the provider enough information to locate the material. They also have to include the copyright holder’s contact information, signature and a statement that they believe the work is infringing. They have to state under penalty of perjury that they are authorized to act on behalf of the owner of the copyrighted work.

Allowable uses

Courts typically allow another to use a copyrighted work when the amount taken constitutes a “fair use” of the work, which often turns on whether the subsequent work is a “transformative” use of the original.

Fair use is an affirmative defense to copyright infringement. The court uses four factors in determining whether something is fair use: the purpose of the use, the nature of the copyrighted work, the amount of the work used in relation to the work as a whole and the effect of the use on the value of the copyrighted work. The “transformative” nature of the use is considered in the first element of that test; merely repackaging the same content is much less likely to be considered a fair use.

While there is no defined amount of a written work that is allowed under fair use, photographs are different in that they are almost always used in their entirety.

Paul Goldstein, a professor of intellectual property law at Stanford Law School, is worried about how courts are interpreting the law, noting the case of Cariou v. Prince as a “particularly notorious example of eviscerating photographer’s rights.” Photographer Patrick Cariou sued artist Richard Prince for using photographs Cariou had taken of Rastafarians in Jamaica. Prince had taken the images from a book Cariou published and incorporated them into collages of his own. The district court ruled in favor of Cariou, but the Second Circuit disagreed on appeal and found the use to be transformative.

“Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs,” the opinion read.

Going viral

Lewkowicz spent months working on her story about Shane and Maggie. The story’s original focus was on how inmates readjust to life after being released from jail, and Shane had just been released. Last November, Lewkowicz was photographing her story when the situation suddenly turned violent. Her photographs show Shane hitting and choking Maggie.

Her photos were published by Time Magazine and were quickly picked up elsewhere on the Internet. She had entered into exclusivity agreements with certain publications and was worried about how her photos appearing on other sites would affect that.

Many of the people who used her photographs without permission did not seem to understand why she was upset when she contacted them. They thought they were doing her a favor by giving her exposure, she said. However, the problem with exposure is that it diminishes exclusivity. The wider the photos spread, the less valuable they become.

Now, when Lewkowicz comes across someone using one of her photos without permission, she sends them a screen shot and asks them about it. She said that 99 percent of the time people respond respectfully, and they are able to come to an agreement, whether that be taking down the image or properly compensating and crediting her.

Lewkowicz acknowledged that she didn’t want blogs in hot water, but that she, along with other photographers, shouldn’t have to worry about their work being used without permission either.

“I think that we’re in a new era, and there’s a lot of navigation that needs to be done, but I think that it’s possible to have a civil discussion about all this,” she said.