This week, there was a report in the broadcast trade press about a lawsuit filed against a North Dakota radio station for allegedly posting on its Facebook page a copyrighted photograph of a well-known rock musician– without getting permission from the professional photographer who took that picture and owned the copyright. This was not a situation where some listener posted a picture on the station’s site, but allegedly one where the radio station posted on its own Facebook page the photo to illustrate a post on that site. We have written many times about how litigious photographers can be about the unauthorized use of their photos online (see, for instance, our stories here, and here). And we have also written (for instance, here) about how the unauthorized use of copyrighted photos and videos even on the social media sites of broadcasters and other businesses can raise many of these same issues. But, as it has been a couple of years since we last posted on the topic, it seemed to be worthwhile to highlight these concerns once again.
The unauthorized use of photos in social media posts, including tweets on X and posts on Facebook, can really be an issue for all sorts of businesses. Even the Donald Trump campaign was reportedly sued during his first run for President for his son’s tweet of a photograph of a bowl of Skittles, which he used to compare Syrian refugees to the candy treats. As we have written before (see our posts here and here ), just because someone posts a picture on the Internet, even on a social media or photo sharing site, does not give others the right to exploit that photo, especially on a digital site of a commercial business. Posting on a social media site may give the social media site owner the right to exploit posted content consistent with their terms of use, but the person who created the content does not give up their underlying copyright in any creative work to third parties. Just because you can easily right-click an image to make a copy of it does not always give you the right to use that image for your own commercial purposes. The Skittles suit represents an instance of a photographer using copyright law to enforce these rights, apparently as he did not agree with the political sentiment expressed by the tweet in which the photo was used. But not too long ago, there was significant publicity about a lawsuit, now reportedly settled, about a New Jersey newspaper suing a cable news network because one of its personalities used a well-known 9-11 photo from the paper as the profile picture on that personality’s Facebook page – without first securing permission.
But isn’t that what these social media sites are for – sharing content?
Yes – content can be shared, but it is usually content to which the person sharing it owns the rights (e.g. vacation photos) or arguably material that is used with some degree of commentary or criticism where a fair use defense is possible (see our post here on fair use). Generally, merely posting a link to another site (which may pull in a picture used on that other site as part of the display of the link) has been seen as permissible, but note that in Europe that may be changing especially on sites that post links to other’s sites as part of a business venture, such as a search site. Even here in the US, there have been cases where there has been a problem because one site posted too much of the content from another site in stories containing a link to the site with the actual story, on the theory that if you post all of the important points of someone else’s article on your site, it may eliminate the need for the viewer to click on the link to go to the other site where the content creator can get credit (with advertisers or others) for the viewer’s visit to their site. And, as we wrote in another article (and yet another article here), some courts have even held that there can be liability for using an embedded image on your site. Even though that embedded image is hosted on another website, if you use it to illustrate a post on your site, where it looks to the viewer as if the image is on your site, some courts have suggested that it is the same as copying the picture and posting on your site. This is a departure from the rule in many courts that finds that you infringe only when the unauthorized image is on your own site and served by your own server (commonly referred to as the “server test”)(see our article here). Given these sensitivities, and the sometimes conflicting court decisions, it is clear that taking a picture and posting it on a business’ social media feed without permission is likely to raise the hackles of a copyright owner who discovers it – as it uses their creative work for no compensation whatsoever.
So what do you do? Taking your own photos and using them on your sites and in your social media is one easy answer – and many broadcasters, including radio broadcasters, have tasked their employees with taking photos of station and community events that can build up a library of images for the station to use. Plus, there are many stock photo services where, for a reasonable monthly subscription fee, you can get the rights to a whole catalog of photographs to use on your business sites. A few dollars now to subscribe to one of these services may save lots of headache (and even more dollars) later on.
