Image problem: controlling intellectual property rights on social media platforms

The risks posed to intellectual ?property and brand protection through the use of social media has caused increasing concern in recent months. More and more, user-generated content is finding its way to a wider audience than may be anticipated by the user, particularly in relation to photographs and videos. And lately, attempts by providers to impose ?more restrictive terms of use or privacy policies have fuelled many scare stories across the internet.

Take the case of popular photo sharing application, Instagram. Shortly before Christmas, Instagram provoked uproar after publishing proposed revisions to its terms of use. The changes suggested that Instagram would be entitled to sell user-generated content to third parties without any onward payment to the service user. Celebrities and members of the public alike took to Twitter and other social media platforms to vent their outrage, threatening boycotts or simply declaring that they would no longer be? using Instagram.

Instagram made a swift U-turn. The terms underwent further revision before coming into effect in January. Instagram insisted that it had no intention of selling users’ photographs, explaining that the purpose of the change to its terms was to allow greater integration with its social media partner, Facebook, which acquired Instagram in April 2012 for $1bn. Instagram’s plight was not helped by comments by Facebook’s vice president of global marketing solutions shortly before publication of the revisions that Facebook would “eventually… figure out a way to monetise Instagram”.

User ownership

Instagram’s terms, both revised and previous, emphasise that “Instagram does not claim ownership of any content that you post on or through the service”. Facebook and Twitter make similar statements. In the case of the latter, Twitter states: “you retain your rights to any content that you submit, post or display on or through the services… what’s yours is yours – you own your content”. It was this latter phrase that proved to be crucial in the recent New York case of Agence France Presse v Morel.

Daniel Morel, a professional photographer, was in Haiti at the time of the 2010 earthquake. He uploaded to Twitter via Twitpic, Twitter’s photo-sharing application, his photographs of the aftermath. His photographs were retweeted (i.e. shared) by a third party, Lisandro Suero.

From Suero’s account, the photographs came to the attention of Agence France Presse (AFP). AFP picked up the photographs and, through a syndication agreement with Getty Images, the images were soon spreading around the world. Having obtained the photographs from Getty, the Washington Post soon published four of Morel’s photographs on its website. All of this took place without Morel’s knowledge or consent.

In the lawsuit that followed, AFP claimed that it was entitled to use Morel’s photographs by virtue of a licence granted under Twitter’s terms of service.

Despite Twitter’s insistence (in common with other social media platforms) that all rights and ownership to user-generated content remains with the user, by submitting to the Twitter terms of service, the user grants to Twitter a “worldwide, non-exclusive, royalty-free licence (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such content in any and all media or distribution methods (now known or later developed)”.

Further, Twitter is permitted by this licence to make content available to other companies, organisations and individuals “who partner with Twitter”. Such additional uses by Twitter “or other companies” may be made with “no compensation” paid to ?the user.

The US district court rejected AFP’s argument that it was entitled to benefit from the licence granted by the user to Twitter. By uploading his photographs to Twitter, Morel did grant a licence for some re-use of his content – including the right for the photographs to be re-tweeted by third parties – but this did not extend to a general licence for use by third parties. The licence was restricted to Twitter and its partners, which did not include AFP. Accordingly, AFP were held to have infringed Morel’s copyright in the photographs.

In reaching its conclusion, the US ?district court placed considerable weight ?on the emphasis in Twitter’s terms that users retained their rights in, and ownership of, their content. Such language was wholly inconsistent with AFP’s general licence argument.

No general licence

So no general licence was said to have been granted by virtue of Twitter’s terms of service. However, Twitter’s terms of service, and those of Facebook, Instagram and other social media platforms, do grant a wide licence to the platform (and its partners) to make use of user-generated content. Users posting content to social media sites ought to be aware that in doing so they are granting to the platform (and its partners) a wide-ranging, royalty-free licence to use that content. Content can be widely disseminated in a very short space of time, completely beyond the control of the user, who may have limited rights of redress through the legal system.

Twitter explains in its terms of service that the purpose of the licence granted to it is to enable the platform to “make your tweets available to the rest of the world and to let others do the same”. Such an explanation, as held in Agence France Presse v Morel, does not permit commercial exploitation by third parties, but there may be little in practice to prevent Twitter, or other social media platforms, from doing just that.

Daniel Morel is not the only tweeter to find his photographs published more widely than intended. Following the Vauxhall helicopter crash in London earlier this year (16 January 2013), London news agencies were quick to pick up on photographs and videos taken of the aftermath by members of the public.

One such photograph, taken by Craig Jenner and uploaded to his Twitter account, was picked up by the Evening Standard and splashed across its front page on the afternoon of the crash, without Jenner’s consent.

The newspaper has since apologised, stating that Jenner could not be contacted in the “heat of the moment” and has promised payment to Jenner should he contact the paper. This incident serves as a further demonstration of the risks of uploading content, particularly photographs, to ?social media.

Social media users may be even more alarmed by speculation that a third party may be able to get around the decision in Agence France Presse v Morel by using Twitter’s own software to embed a tweet (see, for instance, BuzzFeed’s ‘Want To Publish A Twitter Image Legally? Just Embed It’, www.buzzfeed.com, 16 January 2013). Embedding reproduces the whole tweet – username, comment, photograph and all – on a third party blog or website. Such use could fall within the licence granted to Twitter by the user. The US district court was keen to emphasise the distinction between use by Twitter and use by a third party. By embedding a tweet, it is argued, the content remains within the Twitter service and is therefore reproduced by Twitter, rather than the third party.

Such use is unlikely to make it onto the front page of a newspaper, but embedded tweets are already commonly used in ‘liveblogs’ by news websites of major news and sporting events. So, given the risks, why share content at all?

Striking a balance

For many, the ease of content-sharing is the very reason for using social media. For the professional individual, the free publicity of social media can allow the user to reach a much wider audience. The marketing department of a large business may determine the success of a promotion ?by the number of ‘likes’, ‘shares’ and ‘retweets’ it receives.

Those who share on Twitter and other social media platforms will therefore need to strike a balance between promoting access to their work and the protection of their rights. The reality is that, by its very nature, social media involves the rapid sharing of user-generated content. By design or by chance, unique or high quality content can find its way to an unexpected and unintended recipient. Once uploaded, the path of content may fall completely beyond the control of the user.

Clients should therefore be advised to take steps to enhance control of their content prior to upload. Such steps may include the application of a watermark, which, in the case of the amateur user who simply wishes to be credited, may be all that’s needed. Alternatively, a professional might consider uploading lower quality samples, retaining high quality original content for themselves.

It is, unfortunately, not a matter of choosing one platform over another. All require by their terms of service, wide-ranging licences to operate. If the use of social media is necessary or desirable to an individual or business, then the risk of content being unknowingly disseminated is ever present.

While Agence France Presse v Morel offers some reassurance, not all users will have the wherewithal of Morel to exercise their rights through the courts. As is often the case, prevention is better than cure. If your clients use social media, they may wish to consider pre-emptive action, such as applying a copyright notice, prior to upload of content.

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