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.