In this, the best of times and the worst of times, the age of wisdom and the age of foolishness, it’s unlikely that your last tweet or status update was a work of unimpeachable genius.
But the beauty of copyright law is that it doesn’t have to be a masterpiece for you to be able to claim it as yours.
As generous as it might be to refer to discourse on social media as “literary” or “artistic”, that’s what your posts, comments and photos amount to under the Copyright Act.
“The law’s pretty clear that it doesn’t have to be War and Peace,” says media law expert Robert Stewart, a partner at Wellington law firm Izard Weston, which represents Fairfax Media in New Zealand. “It just has to be original, and you have to be the author of it.”
So when media prints photos and comments pulled off Facebook, Twitter, Instagram, and other social networks, does this count as a breach of copyright?
Sometimes, yes – as photographer Dan Catt found when Buzzfeed used a photo from his Flickr account in one of its “listicles” without adequate attribution.
Catt asked Buzzfeed where he should send his invoice, and complained on his blog. After the post was reproduced on Slate, Buzzfeed apologised, and made a donation of $500 to a charity of Catt’s choice.
That’s not to say you’d have the same experience if your photos were printed without permission – but knowing what media can and can’t do with your content helps.
- Check your privacy settings
- Don’t approve friend requests from people you don’t know
- Don’t post valuable material to social media
- If you’re a professional photographer, put watermarks on your pictures, and don’t post your material at a high enough resolution for it to be easily printed
- If a photo of you is used without your permission, ask the photographer to complain
Given that copyright law in New Zealand was last updated in 1994, when none of this was a problem, it’s something of a legal grey area, dependent on the nature of the content, where it was posted and how it was used.
With the exception of commissioned work, or that created in the course of their employment, the creator of the work is generally the first owner of copyright. With this comes the exclusive right to copy, sell copies of and adapt that work, and to licence another person to do the same, often for a specific purpose or period.
Copyright is infringed when a person does any of those “restricted acts” without permission, though there are a few exceptions for media.
Under the Copyright Act, “incidental copying” – for example, if an original artwork can be identified in a photo of a room – is not regarded as infringement. Neither is “fair dealing” with a work for the purposes of criticism, review, or news reporting, so long as it’s fairly attributed.
Under the fair dealing allowance, the media is able to print your newsworthy Facebook statuses, comments and tweets – particularly those posted without restrictions to their audience – in the course of its reporting.
However, and, Stewart says, “it’s a huge ‘however’,” fair dealing explicitly does not apply to photographs. “That’s a huge restriction on the media’s ability to use that defence.”
In the case of photos, the copyright holder is the person who took the photo, not the subject – which Stewart agrees is not widely understood.
“We all know that when there’s an incident that involves an identifiable person, one of the first things journalists do is they Facebook that person to see if they can find any images of them,” he says. “But the subject of the photo doesn’t really have any rights at all – that’s the thing.
“And sometimes finding out the photographer can be difficult, unless it’s a selfie, when it’s pretty clear.”
So when media print photos pulled from social networks without the permission of the photographer, it could be found to be in breach of copyright law – though the absence of a legal precedent makes it harder to pursue, he says.
“You could argue that the media is trying to establish a custom where it says, ‘I’m going to grab it and I’m going to use it, until someone tells me not to, or there’s a court decision that says I do so at my peril’ – and that would only have a dissuading effect if the damages were at a [significant] level.”
If the photo was accessible to the public – for example, if your Twitter or Instagram account isn’t restricted, or your posts on Facebook default to “public” (…) – the publication could also argue that it had an “implied licence” to use it.
“The terms and conditions that apply to the use of social media sites generally contain a licence, where the operator of the site basically says, ‘If you want to provide content to us, you give us a licence to use it for whatever purpose we want’ … and those terms can also apply to what other users of the site can do with that content.”
The issue of implied consent in relation to photographs and comments posted on social media has yet to be tested in New Zealand courts. “But there’s certainly an argument, in my view, that someone who posts content in a publically accessible part of a social media website is giving the public the right to use that content,” says Stewart. “Once you place it online, doesn’t that imply you’re happy for anyone to look at it, free of charge?”
And if your photo has inherent value – for example, it’s of a celebrity in a compromising position, or the first shot from the scene of a freak accident? (For interested readers, the example Stewart and I used was Madonna, flailing in the water of Wellington Harbour, after the Interislander had started sinking.)
“If you had any sense, you wouldn’t post that to social media, as that would decrease its worth. You’d call media organisations, saying ‘I’ve got a picture of this, are you interested?’ and then you’d presumably create some sort of bidding war and away you’d go.”
Restricting the audience of your posts online is also a good idea. “Having said that, some people have thousands of followers and probably don’t know 90 per cent of them – there are those nuances that would be very interesting to discuss in a court.”
If a media organisation has used your content without attribution, Stewart suggests complaining – as Catt did to Buzzfeed.
“The first thing a media organisation would do is look at whether it’s at risk of being perceived in a negative light, and if it was, there would be a response: ‘Sorry, here’s a small sum, which we would have paid for a stock image, anyway’. And that’s generally enough to resolve the complaint.”
If the organisation doesn’t respond, or tries to fob you off, you could take the matter to the Disputes Tribunal or the Copyright Tribunal, though, Stewart warns, the associated costs might mean it’s not worth the trouble.
The best route is prevention, he says. “Think very carefully about what you put online, and whom you allow access to what material, because once it’s there, it’s very difficult to control. And be careful whom you allow access to that material – if you don’t check, you run the risk of one of your followers is a journalist, or a robot, or, even worse, a lawyer.”
For more information, the Copyright Council of New Zealand publishes an introduction to copyright law.
Cover image copyright Horia Varlan.
