Our brave new world of oversharing the moments of our lives has ushered in a plethora of legal issues to go along with the social challenges. One of those issues is the lifting of publicly posted images for commercial purposes. A recent federal case out of the Southern District of New York provides a cautionary tale to those who treat as public the private images posted on the likes of Instagram.
A Brief History of Copyright Law
The present is a point along a path reached by history. Today, the proliferation of cheap cameras with sophisticated software has largely meant that there are few events which aren’t documented with at least some decently exposed photographs, instantly shared to social accounts. News outlets have viewed social sharing as a kind of decentralized photo department, allowing them to gut their professional photography staffs.
But the path to today started a long time back.
The idea that an individual owns whatever he or she creates is an ancient one. The first common law case can likely be traced to 6th century Ireland, when King Diamait Mac Cerbhaill judged that “To every cow belongs her calf, therefore to every book belongs its copy.”
Back then, books were only things that were “copied” in a way which could be called duplicates. Guilds formed to protect their publications, which started us down the Newtonian path of believing that the one who controls the printing press controls the product. It wasn’t until 1710, however, that the idea really got started that creation belongs to an individual.
In that year, the Parliament of Great Britain passed the Statue of Anne. This was a major shift because it took the tools of copy enforcement from the private guilds and gave them to the courts. It was brought about not least because the dawning of the Age of Enlightenment showed the positive social and quality of life improvements which could result from creative endeavor, and the Crown wanted to encourage those efforts.
Fast forward to 1788, and James Madison is arguing in The Federalist Papers for the adoption of the Constitution. In Federalist #43, Madison simply lays out the language which eventually becomes enumerated in Article I, Section 8:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]
Madison’s approach more or less mirrored the English concept: what one creates is one’s property, and like any other property that ownership continues to death.
Off in France, however, Thomas Jefferson was keeping up a correspondence with Madison. Jefferson was a deist—he believed that because everything was created by God, man could not claim any ownership of it. (Indeed, many of Jefferson’s “inventions” were creations he had observed in his travels and simply adopted, changed, or improved.) Accordingly, Jefferson believed that discoveries or creations of whatever type belonged to the public.
Madison was largely unconvinced by Jefferson’s arguments, but the positions of the two have tracked the evolution of copyright protection in the United States. The Copyright Act of 1790 was more Jeffersonian, with protection being provided for only 14 years before a work entered the public domain (but with a chance for renewal for another 14 years.) Over the next two centuries, however, Madison’s view would become the law: changes in 1831, 1909, 1976, and 1998 moved the protection period to include the life of the creator plus at least an additional 70 years after the creator’s death.
The legal approach has been relatively simple: if you make it, it’s yours. The public interest will be served by the marketplace, because if what you make is something the public wants, then you’ll relinquish control in exchange for compensation. Nevertheless, the Copyright Act provides a list of exceptions “for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research[.]” 17 USC § 107.
The devil is always in the details.
Karl Marx Gets a Modem
This approach to copyright protection worked fairly well in a Newtonian world where creations were mostly things. Even if it was an idea or concept which was created, it eventually had to be used in a tangible process or it wouldn’t have any value.
But then along came Napster and neo-Marxism.
In his 1875 Critique of the Gotha Program, Marx made a slogan out of a much older socialist concept: “From each according to his ability, to each according to his needs.” In many ways (and ironically) mirroring the deist approach, Marx’s position was that communism would bring about levels of productivity so high that no individual would want, thereby allowing the free exchange of . . . well, everything.
Whatever the philosophical value of the concept, it doesn’t work in practice. In practice, even after something has been discovered or invented, its duplication has both values and costs which prohibit it from being freely shared.
At least, that was the case until the digital revolution. As bits and bytes became the tools of creation, duplicating those creations became a matter of moving them from one digital platform to another. Photocopying a book results in at least the loss of the binding. But copying a digital creation from one device to another loses absolutely nothing. Except, of course, the ability for the creator to sell the work in the marketplace.
The implications of lossless copying entered the popular consciousness in 1999 with Napster. Napster was a peer-to-peer system which allowed the transmission of digital files both anonymously and by a wholly decentralized method. Napster was the genie out of the bottle. Digitized music was first, quickly followed by movies, television shows, games, and even books.
With Marx going online, the users of sites like Napster and The Pirate Bay became those with “needs,” while the creatives making the content became those with the “abilities.”
Which was bad enough while those with “needs” were in dorm rooms. But as time does, it marched on and eventually those same people became, among other things, marketing executives, journalists, and editors. Although their social status changed, their ideology did not.
Otto v. Hearst Communications
In June of 2017, Jonathan Otto attended a wedding which Donald Trump unexpectedly crashed. Otto took a picture with his iPhone of Trump, and shared it with a few friends. A relative of the bride posted it to her Instagram account. Esquire Magazine (owned by Hearst) ran an article about Trump at the wedding, lifting the image from Instagram and “crediting” the Instagram account’s owner.
This pattern has become quite common on just about every news site today: journalists lift images from Facebook or Instagram and “credit” the account, and then lift comments from Twitter as though they were responses to interviews. Neither the photographers nor the authors of the Tweets is compensated, and their copyrights are wholly ignored. Hearst, in fact, has been sued numerous times for such practices.
Otto sued, and Hearst claimed that they had a “fair use” of the image since it was newsworthy. Hearst also threw a lot of other offensive spaghetti against the wall, claiming that Otto was not a professional, that crediting the Instagram account should be sufficient, and that there was nothing “creative” about the image since Otto didn’t pose anyone. These arguments weren’t successful.
The court was specifically concerned with Hearst’s assertion that as “news media” the First Amendment somehow gives it a special status which allows theft. The court explained that this just isn’t so:
[W]hile free speech concerns are clearly relevant to the fair use analysis, the First Amendment does not categorically protect against claims of copyright infringement. The fact that an entity is a news publication engaging in speech activity does not, standing alone, relieve such entities of their obligation to obey intellectual property laws.
Otto at 13 (internal quotations and citation omitted). Hearst’s interpretation is absurd because it suggests that “the media” literally is outside of the law:
It would be antithetical to the purposes of copyright protection to allow media companies to steal personal images and benefit from the fair use defense by simply inserting the photo in an article which only recites factual information—much of which can be gleaned from the photograph itself. If so, amateur photographers would be discouraged from creating works and there would be no incentive for publishers to create their own content to illustrate articles: why pay to create or license photographs if all personal images posted on social media are free grist for use by media companies, as Hearst argues here?
Otto at 15. It’s just because of those very concerns that copyright protection exists for every creator:
Copyrights protect owners who immediately market a work no more stringently than owners who delay before entering the market. Otto’s status as an amateur photographer with an iPhone does not limit his right to engage in sales of his work. . . . If the practice of using photographs without licensing were to become widespread, the market for such images would diminish correspondingly: [i]f media outlets could use such images for free, there would be little or no reason to pay for works.
Otto at 22 (internal quotations and citation omitted).
The court’s reasoning seems obvious—which is why it’s very disturbing that the news media makes the argument that it is entitled to take any information whatsoever, wherever it finds it, with no regard for who created it or who owns it, and with no obligation to provide any compensation. The Marxist-Napster view has no limits of their “needs.”
Social Media Makes Strange Embedfellows
The court set Hearst straight in a win for the “guy with an iPhone”: it is not your professional status, the tool you use, the number of likes, or how creative someone else thinks you are which determines your right to own what you create. Instead, that right is immediate upon the work’s creation, and the media does not get to ignore the law and steal your images.
But all is not good news because, as the court points out, the protective purposes of copyright law assume that the creator makes choices about the use and display of a work. When an image enters the public domain, there is an argument to be made that the photographer is not pursing a commercial interest—which tips the scales toward “fair use.”
Likewise, using a social media platform means opting into the pitfalls contained in “terms of service.” Posting images to Twitter, for example, allows them to be “retweeted.” Because of the vagaries of HTML, that means a media site can “embed” your tweet (including ones that contain images) and then claim that there was no direct copying. Agence France Presse v. Morel; see also, Twitter’s TOS.
Unfortunately there are no easy rules in these early days of the digitized world. Although putting a © symbol on your images is not a bad idea, copyright claims are highly fact sensitive. Our desire to share what we see with a broad audience puts us in direct conflict with legal ideas about what is a “public domain.” The law always lags behind technological progress, and it will be quite awhile before the rules settle out.
In the meantime, though, rest assured that even if you’re just a guy or a gal with an iPhone posting on Instagram, your work can’t be used for a commercial purpose unless it’s licensed from you!