Copyright issues: use of crowd-sourced/social media content

Q: Can you provide some thoughts on what we can do – and what we shouldn’t do – with photos and videos from the general public? We receive them from people in the local community and will often post them to our website or even publish in our paper. These are often simple, fun things like photos of kids on the first day at school, families on vacation, game day photos, etc. But sometimes they might be more newsworthy, like photos after a natural disaster, accident or terrorist attack. Do we need permission to use these and, if so, how can we show that we have permission? Does it make a difference if, instead of submitting the photos or videos directly to us, they are shared to our social media accounts like Facebook or Instagram – could that result in liability? Should we be concerned if we can’t always verify that the person sending them to us actually took the photo or the video?  

A: Excellent question. When I first started practicing law, almost all questions I received from clients related to defamation, invasion of privacy or FOIA issues. Now I’d say that I get at least as many, and possibly more, copyright-related questions than any or all of those three. I suspect that that’s largely because of the ease with which people can share and republish content via a web page or social media. 
Your question includes a number of variables, each of which can affect how best to proceed in any particular case. I’ll try to identify some of the key issues that come into play. As always, my answer is prefaced with the usual disclaimer that none of this should be taken as legal advice or as a substitute for consulting with an attorney prior to taking action. Because each situation tends to be unique, yours might involve facts or other considerations that call for a different course of action.
But my answer is predicated on one common “rule” that I try to have my clients follow: If you did not create a piece of content, then you need to justify why you are entitled to use it. 
The justification that makes me happiest is clear: written permission from the copyright owner expressly authorizing you to use the photo or video in one or more specific ways. This doesn’t require a long form contract full of legalese. It can be something as simple as a single page. Theoretically, it could even be a single sentence, but I definitely don’t recommend that unless that sentence addresses at least each of the following factors:

  • Exclusivity of Use
  • Length of Time
  • Types of Media Covered
  • Breadth of Use
  • Indemnification by Copyright Owner

Although a photo or video submitted to you by a member of the general public implicitly provides consent to use it some way, the details may eventually matter. Among the questions left unanswered are:
  • Do you have the permission to post this to your website? What about use in print or on social media pages?
  • Do you have to attribute, give credit or identify the submitter in any way? If so, how?
  • What happens if the person who submitted the photo/video didn’t own the rights – what’s your recourse in that situation? Would you have to sue a reader?

One way to address all these questions in a simple and straightforward way is to use only photos or videos collected through a page on your website that requires the submitter to accept certain terms or conditions regarding your use of the submission. In other words, you can address the five key issues identified above in a simple paragraph or two that the submitter must acknowledge before actually sending you the photo or video. Worded correctly, the submitter’s acknowledgment becomes his/her consent to those terms and provides you with the necessary clarity.
What about the more newsworthy situations, where you want to use photo or video that hasn’t even been sent to you? It’s often something that has been posted to social media and perhaps even gone viral. Once everyone else is broadcasting or webcasting a video or publishing a photo, why shouldn’t you? After all, if someone has taken a photo or video in public and posted it online, he/she probably intends for everyone to see it, right? 
Well, yes and no. That might be the case. It all depends on how you are distributing the photo or video. As I’ll explain in more detail in a moment, using a share or embed function to tweet, retweet, post to Facebook or Instagram or even embedding a YouTube video on your site might not cause problems. However, taking that same photo or video and copying it to your website or republishing in your print paper is different. Even if the original photographer or videographer posted the photo to social media without any initial intent to make money, he or she still controls the ultimate use of that content and might later decide that there’s value in that photo or video. The copyright owner’s independent decision to attach value to the photo or video might often exceed any general public interest, newsworthiness or “Fair Use” claims you might try to assert. After all, if publications were able to unilaterally determine when it’s necessary to pay for content and when the public interest dictates that it should be used for free, you can guess how often the copyright owners would get paid. 
Things are slightly different when you find a photo or video that you only want to share through social media. If a photo found on a website has a “share” or “tweet” feature and you use that feature, you’re unlikely to have copyright infringement problems. The same is true if you simply retweet an already tweeted photo, share something already posted to Facebook or embed a video on your website from YouTube, Vimeo or a similar site. In each of these situations, the “share” or “embed” function acts as a form of limited permission that doesn’t require you to get explicit permission from the copyright owner. By clicking the “share” or “embed” button, you get to use the photo or video in a very limited way, limited to exactly the action specified by the button, i.e., either sharing or embedding. It’s nothing more than that; it’s certainly not permission to copy the photo or video and use it elsewhere.
But should you be concerned when a member of the public shares a photo or video to your social media accounts or website? Thanks to the Digital Millennium Copyright Act (DMCA), your risk exposure is much lower here. In fact, if a reader posts a picture directly to your Facebook page or Twitter feed, then that’s really the platform’s problem, not yours. If there’s a copyright infringement, Facebook or Twitter will hear about it. If you somehow make it possible for readers to post photos or videos to your own webpage, then you still have immunity from copyright infringement liability as long as you take advantage of the protections offered to information content providers under Section 512 of the DMCA Act.
To qualify for this immunity, you have to take a few relatively minor steps. You have to: identify a Designated Agent for receipt of copyright infringement notifications on your website, file that information with the United States Copyright Office and have a policy for dealing with repeat infringers and properly responding to “notice and takedown” requests. Of course, the immunity from copyright infringement liability is well worth the minor effort required on your part. It’s absolutely worth familiarizing yourself with the DMCA if you are accepting any user-generated content on your own website.
Please understand that my response is only the tip of the iceberg when it comes to legal issues where social media are concerned. What you post, tweet, snapchat, vine, etc., no matter how short or seemingly innocuous, can cause problems. Anything you’re publishing on any digital platform should be handled with the same care and review as the stories you publish in your papers or on your website. 
If nothing else, a refresher in basic copyright law (or all media law) for your staff is never a bad idea. I’ve had enough inquiries in this regard that I have prepared a comprehensive memorandum (thorough enough that it comes with its own bullet point summary) addressing recurring copyright-related issues like these for newsrooms. It’s intended to be provided to staff as a handy reference. I’ve also prepared a Powerpoint presentation covering the same topics that can be presented in person or as an online webinar. Let me know if you’re interested in either as a means of  providing some continuing copyright education to your staff.