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June 20, 2017

Social media copyright lessons for journalists from the Khloe Kardashian case

By Carolyn Pepper

Carolyn Pepper, partner at Reed Smith, and trainee solicitor Roch Glowacki, on the copyright pitfalls and opportunities of online and social media journalism.

There are several pervasive myths which circulate in the publishing world relating to copyright.

One is that you are free to use a copyright work if you change three things (for the avoidance of doubt this is very much a myth!). Another is that copyright material is free to use on social media sites or online.

Khloe Kardashian recently fell victim to the latter when she posted a photograph of herself and her sister Kourtney, which was taken by photographer Manuel Muñoz, on to her Instagram account and was promptly sued in California by the photographer’s agency.

It is important to have an understanding of what is and is not permissible both to avoid ending up in Ms Kardashian’s predicament and to understand what can be done as a content creator if your material is used online without consent.

The online world obviously lends itself to a more casual approach to communications. But copyright should not be treated in the same way.

The bottom line is that (with some modifications relating to liability for third party content) the same legal rules apply to copyright online as they do to any other media.

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In fact, given the speed with which a social media or online post can go viral and its potential reach, online mistakes can be significantly more costly (or lucrative, depending on which side you are on) than mistakes in other media.

In the Kardashian case, for example, it is reported that the photo agency has complained that the offending Instagram post is being used as a promotional tool in respect of her 67 million followers and damages are sought on that basis.

A notable development over the last few years has been the emergence of technology such as Google’s image matching search facility and which allow searches for possible infringements and digital watermarking which enables photographers to be alerted if their image is used elsewhere.

So, not only is there the possibility of larger damages for online use but infringement is becoming much more difficult to hide, opening up a whole new stream of licensing income for content owners.

Under the terms of most social media sites, it is the user’s responsibility to ensure that the content posted does not violate someone else’s rights. So the user must ensure that they have the right to post any material that they use.

Equally, by accepting those terms and conditions, users usually grant a transferable, royalty-free, worldwide licence to the platform to use any content they share.

In other words, they are abandoning a legitimate ownership claim when their public content is shared on the social media platform, at least as far as use by that platform and its licensees is concerned (this should not be mistaken for permission to use the material elsewhere).

Not all sharing will get you into trouble. There was some initial debate about the legality of hyperlinking which seems to have been finally resolved last year when an Advocate General opinion delivered to the EU Court of Justice confirmed that posting (without permission) a hyperlink to another, freely accessible, website which contains copyright-protected content does not constitute a copyright infringement.

Beware, however, of hyperlinks which make it possible for users to circumvent restrictions (such as paywalls) as the legal position may well be different.

Apart from posting ‘innocent’ hyperlinks, materials which explicitly say they are in the public domain and are available for use can be freely used.

For instance, stock photos from free photo libraries and some content licensed under Creative Commons licences (note that some Creative Commons licences contain restrictions, for example, on commercial use).

The law also provides for a limited number of exceptions to copyright infringement such as works used for non-commercial research, private study or criticism, review and reporting of current events (with the exception of photos) but the exceptions are limited and need to be considered with care before reliance is placed on them.

Whether you are poacher or gamekeeper on this issue, the key message is do not be misled into believing that online use is “copyright free” and make sure you have a licence to use material and follow up with those who use your material without permission.

For the poacher, mistakes in this area can be very costly and for the gamekeeper, an understanding of the position provides opportunities to prevent infringement and to monetise your content.

Picture: Reuters/Danny Moloshok

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