March 3, 2014

When Ellen DeGeneres granted the Associated Press a license to use the now famous selfie from the Oscars, a debate erupted in the Twitter community. Why did AP need a license for an image that had been retweeted a record-setting 3 million times?

The reason is the legal ownership of a tweeted photo isn’t cut and dried.

Who owns the copyright to this image?

Actually, Bradley Cooper has a strong case to claim he’s the copyright holder. Typically, the photographer owns the copyright to the image. However, DeGeneres could argue that since she uploaded the image to Twitter, she is the copyright owner. It would be interesting to see what would happen in a hypothetical Cooper v. DeGeneres case.

Who owns the copyright to social media content?

It depends on the social networks — specifically the network’s Terms of Service, which all users must agree to when they sign up to use the site.

Twitter’s Terms of Service clearly state that Twitter users hold the copyright to the content they create:

“You retain your rights to any Content you submit, post or display on or through the Services.”

Twitter users authorize Twitter (and its authorized partners) to use the content they create within the Twitter platform which extends to content that is shared via Twitter’s APIs. This is not to say that you grant Twitter a broad usage license for your content. The TOS provides for specific parameters and reinforces that users own their own content, stating:

“But what’s yours is yours – you own your Content (and your photos are part of that Content).”

Do news organizations need permission to use social media content?

According to last year’s case Agence France-Presse v. Morel, the answer is yes. Photographer Daniel Morel captured some of the first images of the 2010 Haiti earthquake and posted the images to TwitPic. A Twitter user reposted the images as his own and these images ended up on the front pages of publications all over the world. A federal judge awarded the photographer $1.22 million dollars for copyright violation.

The rule we learned from this case is that when you take social media content out of its native platform, you should ask the content creator for permission.

But it was public!

From AFP v. Morel, we also learned that a photographer does not give up his or her copyright to an image by posting it publicly on social media.

Despite the fact that the selfie is the most retweeted image in the history of Twitter, DeGeneres, as the content creator, still likely holds the copyright to image. I say likely because Cooper, as the actual photographer, could argue he is entitled to the copyright to the image since he was the original content creator.

What about the phone she used?

Some debated whether the phone on which she (or rather Bradley Cooper) captured the record-setting selfie was a Samsung or an iPhone. Apparently while DeGeneres toted the sponsored Samsung on stage, she used her iPhone backstage and reportedly lost her iPhone, with the selfie on it.

If she would have captured the image with the Samsung, which could have been the case since Samsung was promoting selfies, she may have had an agreement with Samsung about who held the copyright to the images.

However, without an agreement, the phone she used likely would have little effect on the copyright since the copyright belongs to the original creator.

What could happen if I use content I find online?

If you share the content within its original platform (e.g. retweet an image within Twitter), then you are within the bounds of use. Twitter provides tools that let you embed tweets on your site, which also is legal. It gets a little more dicey when you take content out of its natural environment (e.g. taking a screen grab or downloading an image you find on Twitter to use on your website).

Obviously, you can try to use fair use as a defense if the original creator were to sue you for copyright. However, if fair use is not a viable defense, the repercussions could be severe. Willful copyright infringement can result in damages ranging from $30,000 to $150,000 per infringement. Imagine what the damages would be if an image was illegally used.

Now that everyone is a publisher, we all have a responsibility to understand the basics of copyright. And given the proliferation of social media sites, and their frequently changing TOS, we should all be aware of the ground rules for the sites we use when we click that little box.

Related training: Social media and the law

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Since joining The Poynter Institute in 2007, Ellyn Angelotti has helped Poynter explore the journalistic values and the legal challenges related to new technologies, especially…
Ellyn Angelotti

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