Twitpics, copyright & making infringers pay

Alternative Title: No, it’s not fair use because you saw it on twitter.

Firstly, disclaimer; I am not a lawyer or copyright expert, I am not qualified to give legal advice and what you do with this information is in no way my responsibility. Secondly, I am writing this specifically around twitter pictures which are so widely stolen, but the basic principles are universal. And finally, this is by no means a substitute for legal advice, you’re always best off talking to a good lawyer.

With the proliferation of phones capable of taking photos and sharing them instantly via social networks has come an attitude from news organisations that these images are somehow not subject to normal copyright. This is completely wrong, and you can do something about it.

A quick twitter picture of mine, lifted without permission by a news organisation to illustrate a story. (Along with several others). The organisation has an annual budget of approximately €80 million, and initially refused to pay.

This practice by some reporters and editors has it’s roots in eyewitness collects, where a photographer or journalist tries to get photos of something from bystanders after arriving on the scene. This is legal as the creator is agreeing to the use, giving a ‘license’ to the organisation, sometimes in return for a one-off payment or a percentage of sales if spec, sometimes for free. However in an instant age many people are likely to take a photo on a smartphone and immediately tweet or otherwise share it, rendering the traditional collect outdated.

The process has unfortunately mutated into something wrong, dishonest and based on legal fallacies on the part of the organisations. Many reporters & picture desks routinely take photos from twitter-centred hosting services such as twitpic*, yfrog etc. and use them (mostly online) without consent. Some ask permission and do things legally but many more show a flagrant disregard for copyright. As a news photographer, I often live-tweet when covering major events, and have seen these pictures appear without permission in a number of outlets. While these images are not my main sellable work, they are by no means copyright-free and I chase them the same as any other infringement.

(* I will use twitpic as a general term through this piece, but mean all similar sites)

Why do they continue to do this?

The only reason news sites use these mobile photos, which are often of a poor quality, over the many legal sources of licensable news images (freelancers, agencies, wire services) which usually aren’t far behind in terms of speed is because they view them as free. This has a knock-on effect on professional photographers as demand for their work is dented by the proliferation of apparently ‘free’ content.

The continuance of this process is a vicious circle and harmful to everyone involved. It harms the content creator who’s work is taken illegally, it harms the professionals who cover news events as they’re undercut by free content and, finally, it harms the public as they are presented with low quality visual journalism without a guarantee of professionalism or ethical sourcing. It only benefits the profits of the company.

How do I know if my photos have been taken?

Google search by image. It’s magic! Ping a photo through this and if it’s been used anywhere on the web, it’ll probably find it.

Checking your photos with this is a good habit to get into, and made even easier with the right-click browser plugins.

Alternatively, a similar service called tineye exists, but personally I find google much more effective.

So, what do we do?

Well knowledge is power, if you’ve had one of your twitpics etc. nicked and want to do something then you need to arm yourself with the facts. Firstly, an image (as with any other work) is copyright from the moment of creation and there’s no need to register it or anything in the UK (If you’re a serious photographer, you may what to consider registering them in the US to protect against infringements located there). An image is copyright unless specifically stated otherwise, ‘assuming’ it’s free to use is not a defense. The main law that applies to copyright infringement in the UK is the Copyright, Design & Patents Act (CDPA), your photos are defined by the act as ‘artistic works’.

Often an infringer will claim ‘fair use’ or ‘public domain’ when challenged on stealing an image, or will claim it is a mistake rather than matter of custom & practice, refusing to pay. Firstly, it’s very unlikely the image is fair use, and much more likely they’re pulling excuses out of nowhere . Fair use is detailed quite well here, and the main point is the ‘news reporting’ exemption does NOT apply to photographs, leaving most infringers without a legal leg to stand on. Secondly, unless you have specifically put the image in the public domain, it is not. Simple as that. They may feel that because they saw the picture on the internet/flickr/twitpic type site etc. that the rules are different, they are not.

Some of the public domain claims around twitpics stem from people misunderstanding twitter’s terms of service and how it applies to linked content such as images. The license you grant to your ‘content’ by posting it on twitter essentially allows complete re-use for any purpose, which means that taking the content of your ‘tweet’ and quoting, copying, displaying, broadcasting etc. is probably not a copyright infringement. However, the key point, is what is content? Content is the text contained in the ‘tweet’ post, and photos on twitter are mostly linked to and hosted by other providers.

What does this mean? Those terms for twitter apply to the text, not things linked to. By the logic some organisations use to claim this applies to photos hosted externally; it could be claimed that anything linked to by a twitter user becomes subject to twitter’s conditions. Thankfully, this is completely false. Depending on which photo host you use (yfrog, twitpic, MobyPicture* etc), the terms in place on your images will differ. (*MobyPicture comes highly recommended for clearest terms and caring most about user’s IP rights).

The terms of service:

• Yfrog; Other than the option to link to the yfrog page of your image, the only other allowed use is

Third parties may request permission to use your content by contacting you directly.

• Twitpic; Huge rights grab for them to use your pics, which should concern you, but pretty clear that anyone can’t just take them

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.

• MobyPicture; Clear, concise and very ethical. Highly recommended.

All rights of uploaded content by our users remain the property of our users and those rights can in no means be sold or used in a commercial way by Mobypicture or affiliated third party partners without consent from the user.

That’s the three main ones. And what about images uploaded directly through twitter with their new-ish built in photos feature? The photos are not hosted by twitter, and once again are not part of the ‘content’ but rather an externally hosted file that’s linked to, even though that’s done through twitter’s interface. The images themselves are hosted by Photobucket. Their conditions are also an awful rights grab in terms of what rights you give them to your pictures, but does that still mean anyone can’t just take them? Well, see the links. To me, i’d read this and run a mile, it’s so open to interpretation. But if it’s too late and you find an image nicked from there and used commercially, and the infringer comes back quoting this, you need proper legal advice. These are just a few of the photo hosting providers, all will have their terms online somewhere.

We have the facts, what now?

So, now we’ve got the basics of the copyright status of your work, the different excuses you’re likely to hear and what the applicable laws are, we’ll move on to what to do if you find an image stolen and used commercially? You have to decide what redress you want from it, do you just want the photo taken down and an apology or do you feel the organisation should pay you the licensing costs for the infringement? Personally speaking, I don’t think infringement should ever be a cheaper route to use than a proper license, and if people don’t hit infringers where it hurts then they’ll just keep doing it as a matter of practice due to the financial risk being so low.

What to charge?

If you want to go ahead and charge them for the use, you need to work out a figure. This is where the NUJ Fees Guide comes in to set established industry rates, and explains to the infringer where the amount you’re asking for has come from. Assuming it’s been used online and in news reporting, the editorial section here is what you need. Then, double it* for infringement. (*The advice in this link mostly applies to NUJ members & pros but principles are the same).

Making them Pay

Once you’ve taken a screenshot of the infringements for evidence and got your facts in order, next step is to approach the infringer regarding the theft. A polite but clear email, linking to their use of the image, where you put it online/they took it from & the terms and conditions applicable to the image, stating that they used it without your permission and you’re treating it as copyright infringement, is a good start. Make sure you attach any screenshots etc. showing it and mention in your email that you want the content taken down immediately and you will be charging them for the use. You can either draw up an invoice and attach it, with what you’re charging and what it’s based on, or include it in the body of the message. They will most likely ask you for an invoice at some point in the process, but you don’t have to start with it. Try to send this to a general contact email, the picture desk/editor/accounts department are good to CC in if you can find their details.

I won’t tell you what to write, or how to say it, as that would be legal advice and it all depends on the circumstances. If in any doubt, consult a lawyer. Run off a checklist in your head before to send it to make sure that all the necessary information is there (what, where, when, what you want done, how much you’re charging and what this figure’s based on etc) and your contact details. It may also be worth stating that you wish the invoice/amount to be paid within 30 days. If you set a fair time limit, you have the right to charge late payment fees.

Wait…

If you don’t hear anything back within a couple of days, it may be worth following up with a phone call/email to the picture desk or editor to confirm their receipt. They will most likely come back with one of the excuses above, or they may apologise but still refuse to pay. They have broken civil & criminal law with their actions, so they’re very much on the back foot. If you correct any false statements they make and continue to insist on the payment of the amount invoiced then they will most likely pay. If they say something like ‘we don’t pay that much for photos, we’ll pay you £x’, it’s worth remembering that the value of the work is determined by it’s creator, not them, and you have the backup of basing your figures on industry standards. They wouldn’t take a product, use it, then when made to pay the cost back insist on paying what they feel it’s worth in any other area of life, why let them get away with it here?

If they refuse?

If they adamantly refuse to pay, issue a final demand for payment, stating that you will commence legal action for the amount invoiced plus late payment fees, court & legal costs and any other damages the court may see fit to award. If they still refuse, it’s time to get a lawyer.

But I don’t want to go to court!

Don’t worry, even if things have gotten this far and they’re not moving, as soon as they receive a scary Letter Before Action from a lawyer, they’ll probably pay (and your legal cost of getting the letter drawn up). If they don’t and you want to take it forward, don’t be scared of taking legal action, your solicitor will guide you through the process. Cases for payment are generally quite straightforward and can often be dealt with in small claims, as long as you can evidence the infringement and explain the reasoning behind the amount of money you’re asking for.

Complications:

• They won’t take it down without a DMCA notice? You can do this yourself with a little research, or get a solicitor to send one.
• The infringer’s in another EU country? They’re covered by European Small Claims procedures.
• The infringer’s in the US? Unless the image is US © Registered, it may not be worth it. Get legal advice.
• The infringer’s somewhere else in the world? May not be worth it. Get legal advice.
• Anything else? Get legal advice. This applies to any confusion, complication or just generally as a good idea.

Have I missed anything? Drop a comment below, same applies if you’ve found the piece helpful etc.

I can’t and won’t offer legal advice in your specific case, talk to a solicitor. IPP* come highly recommended if they’ll take your case, but any solicitor should be able to handle a simple case and specialist ones aren’t hard to find. (* At the time of writing, their site appears to be down)