Over the past 10 years, the Internet revolution has transitioned into the social-media and mobile-application revolutions. These technology booms, in conjunction with the parallel technology revolution of digital photography, have created a dynamic culture shift in how people communicate with each other. Now more than ever, people rely on visual imagery, both still and video, in their everyday communication with friends, family and coworkers. This perfect storm of technology revolutions has created a tumultuous environment for creatives mindful of protecting their work, whether it be photos, videos, music, books, etc., via copyright law.
Copyright Vs. The Internet
Unequivocally, copyright protection has been an important element of U.S. law and culture to the extent that the founders of the United States included it in Article 1, Section 8 of the Constitution, stating that Congress has the authorization "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." Where the English Statute of Anne provided authors exclusive right to copy and distribute their work for 14 years, U.S. founders in 1790 initially extended this provision to a 14-year term, plus the possibility of a 14-year renewal. Since then, U.S. copyright law has undergone two major revisions, the last being in 1998, resulting in an extension of the term of protection to the life of the author, plus 70 years.
The Internet is a newcomer, on the other hand, having come into being, close to how we know it, in the 1980s and 1990s. It may be hard to believe given that we rely on it so much, but the Internet was only opened to commercial ventures and traffic in 1995. Since 1995, the Internet has become a staple of everyday use thanks to infrastructure improvements that make in-home and mobile Internet access fast and affordable.
Two things should stand out to you at this point:
1. The last revision to U.S. copyright law was made three years after the Internet was opened to commercialization.
2. No major copyright revisions have been made since 1998 to address new developments surrounding the Internet. These are two critically important facts to note as many of today’s best-known Internet services were founded in or after 1998, including Google (1998), Wikipedia (2001), LinkedIn (2003), MySpace (2003), the iTunes store (2003), Facebook (2004), Flickr (2004), YouTube (2005), Twitter (2006) and Google+ (2011). For better or worse, much of the current culture clashes between classic copyright law and the Internet have been settled in the courts versus outlined concretely in federal law. Creative Commons (2001), a solution for creatives to take a proactive stance at a grassroots level, hasn’t proven to be a robust official solution adopted at a federal level yet.
[See "Creative Commons" by Jim Goldstein on the DPP website at www.digitalphotopro.com/business/creative-commons.html]. As Internet businesses evolve so, too, does the online culture that powers them. It’s this dynamic evolution that makes it a challenge for any official legislation to keep pace.
Anatomy Of Copyright Concerns
Given the heightened concern about copyright infringement online, in particular, via social-media websites, let’s take a step back to look at the general types of infringement that are most often cited. At a high level, there are six ways copyrighted material is used or abused online in relation to blogs and social-media websites:
1. Misuse of copyrighted material by individuals
2. Misuse of copyrighted material by companies
Permission Granted Unknowingly And Rights Grabs
3. Permission granted unknowingly for copyrighted material to be used by companies in exchange for access to social-media functionality and/or data
4. Permission granted unknowingly for copyrighted material to be used by individuals in exchange for testimonials and/or exposure
Authorized, But Potentially Debated Use
5. Permission granted knowingly for copyrighted material to be used by companies in exchange for access to social-media functionality and/or data
6. Permission granted knowingly for copyrighted material to be used by individuals in exchange for testimonials and/or exposure
Pragmatism Vs. Taking A Hardline
When it comes to discussing copyright infringement online, it’s very easy to jump on extreme sides of the debate, but a large number of photographers are exploring the gray areas between these extremes. The most common scenarios people are experimenting with to enforce their copyrights is in Scenarios #5 and #6 noted earlier. Ultimately, deciding how strictly to enforce your copyrights is subject to the nature of your business and your personal comfort online. If you’re unsure of how to interpret online legalese or how to decide to move forward, in general, it’s best to consult with a lawyer familiar with intellectual property and copyright law.
As you evaluate the gray areas of copyright use and/or enforcement, it’s important to challenge your thinking about copyright law and online content use. Even if you don’t shift your opinion in the end, at least you’ll have had a chance to reconfirm your opinions by exploring alternative approaches. As history has proven, there’s no one right approach.
Given photographers now can market and interact with fans and clients directly via social-media websites and blogs, it’s important to remember how far we’ve come in such a short time frame. Photographers, videographers and general content/media consumers are all still learning and adapting. While copyright laws haven’t shifted, there may be acceptable uses of your intellectual property to further your business goals that technically may fall under the current umbrella of infringement. Embracing low-level infringement, such as a fan sharing your photos online, may open doors, introducing your work to new fans and/or clients outside of your existing network. In essence, your fans become an extended arm of your marketing effort. In such a scenario, embedding metadata and watermarks with your contact information, such as a website address, turns your web-optimized images into business cards.
Of course, to those who see any unauthorized use as infringement, "fans" in my example are seen as nothing more than infringers. For those with this mind-set, the question becomes how much time and how many people are you willing to track down in order to stop the infringement? How much money do y
ou think can be recouped through penalty versus extension of good will to fans who want to share your talent? This, of course, assumes that these "fans" are individuals with noncommercial intentions versus businesses where a photographer may have an easier time working out a retroactive license or seeking damages. Triaging infringers is now a necessity to balance time, effort and opportunity cost.
Social media has become a catalyst to cultural shifts that have forever changed the landscape by which people view and share photography. A healthy dose of pragmatism could go a long way. Rather than sticking to a strict interpretation of existing copyright laws, ask yourself how well this approach may play out in one, five or 10 years versus taking a more explorative or pragmatic approach to copyright enforcement.
Avoiding Social-Media Copyright Pitfalls: Terms Of Service
Where social media opens new opportunities, it also creates new pitfalls. My earlier infringement scenarios "Permission Granted Unknowingly" and "Rights Grabs" are often the greatest source of alarm within the photography community specifically relating to Terms of Service (ToS) by social-media websites. Every photographer should always read the ToS for any site they’re thinking of joining. Over the last several years, there have been numerous instances where new social-media sites come online and many photographers are shocked at the rights claimed in their ToS. The cause of this shock is rooted in many new social-media websites, often startups, referencing an excessively far-reaching ToS boilerplate and photographers not understanding provisions in more generic or standard ToS. As social-media websites have matured, ToS documents have become less invasive and less difficult to understand, but still warrant scrutiny. As detailed in my blog post "How I Evaluate Terms of Service for Social Media Web Sites" (www.jmg-galleries.terms-of-service-for-social-media-web-sites-google/), there are four factors I evaluate in ToS documents before participating in a social-media website.
1. Is a claim made that the copyright of my work is transferred to "company X" upon posting or submission?
2. Is a claim made that my copyrighted work will be distributed to sites under a set umbrella of sites and services (for example, Google: Google+, Google Search, Google Image Search, Google Maps, Google Places, etc.), or far beyond, such as a blanket claim to sublicense my shared work to known and unknown
companies/services (for example, third-party advertisers or image licensing services)?
3. Do terms used in relation to any claimed license include "irrevocable", "perpetual license", "fully paid", "royalty-free" or the classic phrase "by all means and in any media now known or hereafter developed"?
4. Can the Terms of Service be terminated by myself and not just by "company X"?
Sites & Their Terms Of Service
Social-media/microblogging website that allows users to share 140-character text updates and images. twitter.com/tos
Links to the ToS for some of the most popular social-media websites are below. When reviewing these ToS documents, note that they address the rights needed of the host company to provide their services and the rights/responsibilities of content owners/copyright holders, site users who distribute content through their service and developers building tools to share content within their service/website. Each ToS also contains a Disclaimer or Disputes section, placing responsibility of content use on the individual user versus the company (i.e., site users are the liable party for copyright infringement). Once you’ve read these ToS documents, it’s a good practice to check in on changes that are regularly made to them via the "TOSBack Terms-of-Use Tracker" (www.tosback.org/timeline.php) created by the Electronic Frontier Foundation (www.eff.org/).
When evaluating an existing or new social-media site in relation to copyright concerns, make every effort to look beyond the hype. Educating yourself to the purpose and limits of a site’s ToS is incredibly important. A healthy dose of skepticism is good, but don’t lose sight of reality.
What’s the business model of the site you’re evaluating? Do they have a track record of exploiting or reselling/relicensing copyrighted material? How can you maximize the opportunity before you with the website you’re evaluating? What can you do to safeguard your copyrighted material while still making use of the site? These are but a few questions that should help you make a reasonable assessment of risks and set a course to make use of social media in a wise fashion.
Even for sites that have had the poorest of ToS, no major social-media site to date has made it their business to officially sell or relicense copyrighted material as one may see with a stock agency. Social media, while powered by the content of others, has always been about the collection of user data (demographics, interests, purchases, web-viewing trends, etc.) for the sake of targeted advertising. Things always can change, but precedent has shown social-media companies have skirted the hot-button topic of copyright infringement while savvy photographers have been creatively using social media, balancing risk and reward to enhance their businesses.
Jim Goldstein is a professional outdoor and travel photographer, as well as the VP of Marketing at BorrowLenses.com. You can follow him on his blog at www.jmg-galleries.com/blog, Twitter (@jimgoldstein), Facebook (www.facebook.com/jmggalleries) and Google+ (www.gplus.to/jimgoldstein).