Who Really Owns Your Photos in Social Media? (Updated 2013 Edition)

A recent U.S. court decision clarified that media organizations cannot assume that photos shared via Twitter are rights-free, to be used as though they were in the public domain.

In the case of Agence France-Presse (AFP) v. Morel, U.S. District Judge Alison Nathan ruled in favor of freelance photographer Daniel Morel. Her judgment: Both AFP and the Washington Post had infringed on Morel’s copyright.

Not unlike last week, when some British news organizations published front-page photos of a helicopter crash sourced from Twitter, in January 2010 AFP lifted Morel’s photos of the Haitian earthquake from Twitter/Twitpic and distributed them on its wire service.

These cases raise big questions, including where does copyright law and Twitter’s terms of use intersect? How can media organizations best serve their audience, particularly in a breaking news scenario? What can photographers — professional and amateur — learn from Morel’s experience?

Morel, a former AP photographer, was in his native Haiti at the time of the earthquake, January 12, 2010. He created a new Twitter account and uploaded 13 photos to Twitpic.

As Photo District News reported, after Morel realized AFP and Getty had appropriated his photos, his agent, Corbis, sent take-down notices to Getty and AFP, but it took AFP two days to issue a kill notice. Moreover, the photos had also been falsely attributed to Lisandro Suero; some of these photos can still be found on news sites.

AFP’s argument — that the Twitter terms of service allowed it to not only distribute his photos without permission but also distribute them through Getty Images — was untenable. Judge Nathan wrote:

https://twitter.com/GlennF/status/289633545876541440

The most risk-adverse route for organizations: Use the “embed” code provided by Twitter or Twitpic to easily incorporate tweets in your story. In some cases, such as photos on pic.twitter.com and videos from YouTube, referenced media will automatically be displayed with the embedded tweet.

Twitpic provides embed code only for thumbnails, not full-size images; the code includes a link back to the Twitpic page and user account. There is an undocumented work-around, however, for displaying a larger image.

Alternatively, consider using Storify to curate a story using sources from multiple websites.

Advice for photographers

Same thing: Understand the terms of service on a web host before you upload your images. Almost all of the services make it clear that you have not relinquished your copyright in exchange for hosting.

It’s the license that you are granting the service in exchange for hosting that bears inspection.

When we visited this issue in 2011, Kraig Baker, an intellectual property attorney and adjunct professor at the University of Washington in Seattle, advised photographers to analyze three things when reviewing a license:

1. the reach (are the licenses, global, non-exclusive, sublicensable?),
2. the scope (how broad are the claimed rights) and
3. any restrictions, such as a prohibition on commercial use.

My recommended host remains Flickr due to its variable licensing options (Creative Commons and traditional copyright) and its very clear statement of ownership and use:

“Photos and/or images found on Yahoo! Images or Flickr are the property of the users that posted them. Yahoo! cannot grant permission to use third party content. Please contact the user directly.”

However, Twitpic and MobyPictures — two micro-hosting services — also have restrictive (i.e., protective) licensing provisions. MobyPictures contains no licensing verbiage in its TOS. Instead, it explicitly prohibits commercial use without consent.

The Twitpic license covers content on Twitpic.com and affiliates. Like Twitter, Twitpic provides guidelines for anyone or any organization that wishes to reuse member content (emphasis added):

“All content uploaded to Twitpic is copyright the respective owners. The owners retain full rights to distribute their own work without prior consent from Twitpic. It is not acceptable to copy or save another user’s content from Twitpic and upload to other sites for redistribution and dissemination.”

Since Twitter began hosting images — first at PhotoBucket but now in-house — traffic at Twitpic has plummeted. However, Twitpic photos may still be displayed inline with tweets on Twitter.com.

What about larger photo-hosting services like Imgur, Instagram, Lockerz, PhotoBucket or yFrog?

Facebook bought Instagram in April 2012 and both companies recently updated their terms of service. After the purchase, Instagram’s traffic increased from less than 2 million unique visitors a day to more than 15 million in December, giving it more unique visitors than Flickr or PhotoBucket, according to Compete.

However, in December 2012, users objected to a TOS change implying that Instagram had a “perpetual right to sell users’ photographs without payment or notification.”

The company made a rapid about face, but there was fall-out.

The new Instagram TOS specifically addresses advertising but not how non-partners may use your content.

Expansive licensing is a hallmark of the big boys. For example, the Lockerz TOS contains a very broad license (emphasis added):

“Uses of the Submissions…. all such information you post, collect, or otherwise make available… (2) becomes publicly available such that it can be collected, viewed, redistributed, and used by others, including without limitation, on the Website and, more broadly, through the Internet and other media channels.”

If you want complete control over your images, avoid Photobucket. The license described in the Photobucket TOS explicitly allows for reproductive and derivative use without prior consent (emphasis added):

“If you make your Content public, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to copy, distribute, publicly perform (e.g., stream it), publicly display (e.g., post it elsewhere), reproduce and create derivative works from it (meaning things based on it), anywhere, whether in print or any kind of electronic version that exists now or later developed, for any purpose, including a commercial purpose. You are also giving other Users the right to copy, distribute, publicly perform, publicly display, reproduce and create derivative works from it via the Site or third party websites or applications (for example, via services allowing Users to order prints of Content or t-shirts and similar items containing Content, and via social media websites)”.

An exception to this trend is the Imgur TOS, which prohibits commercial use of someone else’s photos:

“By downloading a file or other content from the Imgur site, you agree that you will not use such file or other content except for personal, non-commercial purposes, and you may not claim any rights to such file or other content, except to the extent otherwise specifically provided in writing.”

Finally, yFrog. ImageShack operates yFrog and, unartfully, states that the yFrog license is restricted to the ImageShack network. Moreover, the service promises not to “not sell or distribute your content to third parties or affiliates without your permission.”

Photos on other sites

Photos, of course, are also shared on non-dedicated services like Facebook, Google+, Posterous and Tumblr. Are these licenses any more or less favorable to photographers?

Like Lockerz, the Facebook TOS and license is very broad. Facebook allows any public content to be used but does not define what it means by “use” (emphasis added):

“When you publish content or information using the Public setting, you are allowing everyone, including people off of Facebook, to access and use that information …”

Google limits the derivative works provision of its license to “adaptations or other changes we make so that your content works better with our Services.” However, “[t]his license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps).” There is nothing explicit about how others might legally (or illegally) reuse your content.

Both Posterous and Tumblr have protective terms. The Posterous license is limited to the Posterous site. The Tumblr license limits sharing content: reblogging on Tumblr or sharing on approved third-party services.

If you believe your copyright has been violated, the American Society of Media Photographers has published a tutorial titled “What To Do If Your Work Is Infringed.”

TOS summary and site statistics

You can review a detailed comparison of the terms of service for 13 photo sharing sites or check out a summary table. Also, see statistics on unique visitors, as well as Alexa ratings, for the 13 sites discussed here.

The big picture

The web is a relatively young medium (two decades), but arguments about copyright infringement are centuries old. AFP v. Morel is not the only case — nor the first case — involving digital copyright questions. However, most cases have involved a different sort of infringement, one that involves DMCA take-down notices issued by corporations.

With quality cameras in almost every cell phone and easy push-button publishing to the world, the web is awash with digital images. The temptation to use the work of amateur photographers, particularly in breaking news events, will be hard for media organizations to resist.

Citizen journalists: Set up your YouTube account so that you can receive Google AdSense compensation. Set up your Flickr account to license your work via Getty Images for commercial use.

Media: Know the terms of service. Understand the difference between a promotional medium — tweets and Facebook status updates linking to an image — and hosting sites like Flickr, Instagram or Twitpic. When in doubt, use the Twitter embed code or an aggregation tool like Storify.

Finally, take Glenn Fleishman’s advice to heart: If you can’t identify and contact a photographer, don’t download and use the image to illustrate a story.

• The case is Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.
• This is an update of Who Really Owns Your Photos in Social Media?, June 6, 2011

Kathy Gill (@kegill) has been online since the early 1990s, having discovered CompuServe before Marc Andreessen launched Mosaic at the University of Illinois in 1993. In 1995, she built and ran one of the first political candidate websites in Washington state. Gill then rode the dot-com boom as a communication consultant who could speak web, until the crash. In 2001, she began her fourth career as an academic, first teaching techies about communications and now teaching communicators about technology at the University of Washington. For almost five years, she covered politics for About.com; for three years, she covered agriculture.