News companies must pay for swiping Twitter pics (but our photo laws are still a mess)

News agencies can’t simply help themselves to the photos they find on Twitter. That’s the upshot of a closely watched court case involving a freelance photographer who sued the Washington Post and other companies who used his images from the 2009 Haiti earthquake.
The court ruling is a victory for the photographer but will do little to clear up a brewing legal storm over who has a right to photos posted on social media. Consider the ironic mess we’re in: on one hand, news companies depend on Twitter and other sites for news pics — but on the other hand, they sue if other people use their own photos.
Here’s a plain English explanation of the court case and how it relates to the larger trouble with copyright laws in the age of social media.

No, you can’t just have those photos from Twitter

When a devastating earthquake hit Haiti in 2010, news agency AFP turned to Twitter and discovered a user’s “exclusive photos” of the disaster. AFP took those photos and shared them with photo service Getty. The Washington Post then took the photos from Getty and published them on its website.
There was a problem, though. The user who claimed to have the “exclusive photos” had taken them from another Twitter user who was the actual photographer. This meant that Getty and the Post published photos without permission and with the wrong attribution.
When the photographer sued the news agencies, they responded by saying that his decision to put the photos on Twitter amounted to granting a public license for anyone to use. The argument isn’t as far-fetched as it sounds. Consider what happens when I see your photo on Twitter and retweet it — I’m taking your work and republishing it. Is it so different if the Washington Post does the same thing? The court seemed to think so. Here’s the key passage:

Indeed, this is the fatal flaw in AFP’s argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.

The judge’s conclusion led her to grant summary judgment against the AFP and the Post which means they now must pay up to $150,000 for each photograph. (The case against Getty goes on — see the marked up copy of the ruling below for details).

The court ruling solves nothing

The fight over the Haiti photos has received a lot of attention because it involved a natural disaster and a David vs Goliath storyline. But the reality is that, in the age of photo sharing, these sort of photo disputes are blowing up all over. As my colleague Mathew Ingram explained last week, a dispute between BuzzFeed and Reddit over photos is just the tip of the iceberg due to a web “remix culture” that makes image reproduction easier than ever.
This tension over photographs is only going to grow as smartphones spread and people post more pictures online. Meanwhile, social media images are becoming ever more essential to news reporting. This week, for instance, British newspapers all relied on a user’s Twitter photo to report on a London helicopter crash.
This situation means news agencies will keep finding themselves on both sides of the copyright debate. Getty, for instance, is not just a defendant in the Twitter case. It is also making major money by combing the web for people who use its images without permission — and then extracting expensive legal settlements.
There is no easy solution to this copyright mess. One suggestion is a universal licensing scheme that provides a guaranteed payment, or at least an acknowledgment, to people who happen to be in the right time and place to take an important photo. A more likely outcome is that companies will continue to press courts to push the bounds of fair use ever outward or, as in the recent Instagram debacle, consider changing their terms of service in order to strip user rights to photos in the first place.

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(Image by Lisa A via Shutterstock)