Can a news org publish someone’s Twitter photo?

The long, weird story about Teri Buhl’s Twitter account became a little longer and weirder last week, after Buhl wrote Poynter, requesting it take down a photo of her Twitter header. Poynter used a screenshot of images atop Buhl’s Twitter account to illustrate a story about her desire to keep others from republishing her tweets.

Buhl wasn’t concerned about her avatar photo, which a Patch spokesperson told Poynter she’d supplied to New Canaan (Conn.) Patch for a story about her last March. She wanted to protect the photo behind it, of a wetlands scene with birds, possibly American White pelicans, and the sun just below some hills on the horizon.

Buhl also asked Jim Romenesko to remove the image: “Really, Teri?” he replied. She made a similar request of the Knight Center for Journalism in the Americas, which like Poynter removed the image. Romenesko’s original post still shows Buhl’s whole Twitter header.

Both Knight and Poynter “have lost a lot of credibility with me,” Mike Masnick wrote in Techdirt Monday.

This is hogwash. The whole point of fair use is that you do not need permission. That’s what fair use means. If you needed permission, you are not making use of your fair use rights. And yet, both the Knight Center and Poynter caved immediately.

Alison Steele, a media-law attorney who represents the Poynter Institute, told me in an interview that the problem with a fair use test is it’s “not one black and white rule of law.” The section of U.S. copyright law addressing fair use lists four tests, which Steele likens to “beans on the scale.” If you’re dealing with a professional creator of images, that’s a pretty heavy bean on the other side of the scale from you. You can’t presume, Steele told me, that a photo isn’t owned by someone.

Photos “have to always be considered creative works,” she cautioned. “You have to assume that it’s going to be protected by a copyright.” Screengrabs, she said, are safer when they show an image in context — as a photo on a Facebook page for example. “The more of a screengrab and the less of a focus on the individual photo, the easier it is to show you’re reporting on the existence of a thing and not simply swiping,” Steele told me.

But there are “not clear rules” about screengrabs, she said. “The one thing we do know is in the online environment, linking works.” She said her first advice when dealing with the work of a professional journalist or artist is “get permission. It’s the most certain and surest way. Otherwise you’re simply trying to make a legal calculation with what is right now a fuzzy test.”

Online sites’ terms of service can help a publication determine rights to a photo, but “those change constantly,” Steele warned. Twitter’s terms of service, she noted, “make stuff available to other people, but they do not strip the author of his or her original rights.”

But news reporting, criticism and comment, Steele said, is “a pretty good bean.”

So why’d Poynter take Buhl’s photo down? It seems to me Poynter could have made an argument that including the photo on her Twitter header in a story about the words on her Twitter header gave Poynter a big fat bean to argue fair use. That’s assuming, though, that Poynter wanted to go to the mat on this one.

My boss Julie Moos, who is the director of Poynter Online & Poynter Publishing, told me one big factor in her decision was that Buhl’s photo wasn’t integral to the story. She decided to crop Buhl’s photo out of the image of her Twitter header after talking with Steele and Buhl. “If a copyright holder asks you to take down material they own, you can simultaneously comply with that request and discuss alternatives,” Moos told me in an email.

“I spoke with Teri about what we were trying to accomplish and what she was trying to protect,” Moos wrote. Removing the photo was “a mutually agreeable solution.”

“We weren’t trying to establish precedent or case law,” Moos wrote, “only to publish what would serve our readers without disserving the copyright holder.”

Correction: Buhl gave Patch permission to use her photo for a March story, not a November story as we originally reported.

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  • NateBowman

    Credit where credit is due:
    Great job Ms. Moos
    Thank you

  • http://twitter.com/tbuhl Teri Buhl

    Mike who is the copyright lawyer you interviewed for your stories? Was there one?

    Here is what the copyright lawyer I consulted with said about fair use

    http://www.teribuhl.com/2013/02/10/about-that-twitter-thing-i-did-that-has-tons-of-techies-mad-at-me/

  • http://www.poynter.org Poynter

    Hi, Mike. Thanks for commenting. No doubt different copyright lawyers would give different advice, but for a window into our thinking it made sense to talk with the one who gives us legal advice. Also, I should have been clearer, I meant the source of the copyrighted material, not the source of information. –Julie Moos, Director of Poynter Online

  • http://twitter.com/TerrillCharming Skyfall

    Its a crazy debate. Artist dont have many rights over the usage of their photos. Its so hard to track it down once its used also. If you’re not paid up front for the photo, please believe that someone else is going to make money off of it and you wont get any. I’m so afraid to upload my gems to the web. I said i’d only sell them and put up small thumbnails online. Even in studios and stores, people snap pics with their phones 8MP and make small prints. its so hard for an artist to succeed these days without some really good marketing. Bottom line, you publish a photo to the web, its free game unless copyrighted.

  • http://techdirt.com/ Michael Masnick

    I think this piece could have been helped if you spoke to other copyright lawyers, who could explain why this sort of use weighs VERY heavily towards fair use. I understand that there is no black and white division for fair use, but taking the attitude Poynter takes is how fair use dies — and that’s a shame. Fair use is extremely important for journalism, and when journalism’s leaders think that exercising basic fair use rights is the equivalent of needing to “establish precedent” is deeply troubling. I can understand finding a “mutually agreeable” situation with a source, but Buhl was the subject of the story, not the source. And that’s the problem which isn’t even addressed here.

  • http://twitter.com/MarkLoundy Mark Loundy

    Ironically, it might not have become Fair Use until she made an issue of it, thereby making the image itself the subject of a news story.

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