In a virtual world propelled by shared content, most people and businesses don’t think twice about sharing or retweeting a photograph they find on their social media feeds. But if you're a small-business owner, this seemingly harmless act can amount to a bank-draining copyright violation lawsuit.
Think it could never happen to you? Let's take a look at the case photographer Daniel Morel mounted against media giants Agence France Presse and Getty Images.
Agence France Presse v. Morel: A Cautionary Tale for Small Business Social Media Marketing
According to the Photo District News article, "Morel v. AFP Copyright Verdict: Defense Strategy to Devalue Photos and Vilify Photographer Backfires," the copyright trouble started on January 12, 2010, when the freelance photojournalist Daniel Morel walked around Port-au-Prince, capturing the immediate aftermath of the devastating earthquake that struck Haiti. He was already in the city on an unrelated assignment, and he planned to license his images of the destruction and its victims to news organizations.
But first, Morel uploaded a selection of the shocking images to his TwitPic account within hours of the earthquake. Since he was one of the first to transmit images from the scene, the pictures immediately caught media attention. After the upload, a man named Lisandro Suero stole and reposted the photos as his own.
Agence France Presse's photo editor Vincent Almavy found, downloaded, and distributed the stolen images to AFP's clients, giving Suero credit. Getty Images was one of the distributors to pick up the pictures, and the photos continued to circulate with Suero's name. Though AFP issued a correction about the photo credits a day later, the damage was done. By this time, AFP and Getty had already licensed the images hundreds of times and raked in between $15,000 and $30,000 in profit.
Morel struck back at the media agencies by suing them for copyright infringement. When the case went to trial, AFP and Getty's attorneys tried to argue that Morel forfeited his copyrights when he posted the high-resolution photos to his TwitPic account.
However, the federal jury disagreed. By the trial's end, Morel was awarded $1.2 million in damages over the willful infringement of his work.
What Small Businesses Need to Know About Terms of Service Agreements and Copyrights
You may think that once a photo appears on social media, it's available to use as you see fit. That's the same assumption AFP made when it distributed the earthquake photos without Morel's permission.
But the Agence France Presse v. Morel case demonstrates that Twitter's terms of service don’t negate the laws that protect a user's intellectual property. During the trial, the judge said that the service terms allow other users to retweet images under certain circumstances. However, this doesn't grant permission to use the images in a commercial capacity.
Twitter, though not involved in the case, reiterated that its users own their photos. It's worth noting that almost all social media sites take a similar stance when it comes to protecting user-generated content. If you steal, distribute, or plagiarize someone's copyrighted work, social media sites can't be held liable. They shift that responsibility directly onto you in their user agreements.
Tweet at Your Own Risk: Why AFP Couldn't Claim "Fair Use"
If the Morel case can teach us anything, it's that you can't be too careful when you are a commercial entity that wants to use someone else’s intellectual property. If a copyright holder can prove that your business used their work without permission for commercial purposes, you could be hit with an expensive judgment.
The only real defense for a copyright infringement claim is that your post was in fair use. "Fair use" allows copyrighted works to be reproduced or distributed for the purpose of…
- News coverage.
- Scholarship or research.
Fair use provides a necessary gray area that allows others to use copyrighted work in "transformative" ways (i.e., add a new layer of meaning to the piece, whether it be educational or artistic). When deciding whether or not reproduction and distribution qualifies as fair use, a court considers…
- The purpose for using the copyrighted material without permission.
- The nature of the copyrighted work (e.g., photograph, essay, painting, play, meme, etc.).
- The extent of the use in relation to the whole of the copyrighted material.
- How the use affected the work's marketability or value.
Though Agence France Presse and Getty Images had hoped that their distribution would fall under the realm of fair use, the jury saw the act as willful copyright infringement. That means the defendants knew that the images belonged to someone else, they didn't have permission to use the images, and they licensed the images anyway for commercial ends.
To learn more about staying within the bounds of fair use, check out our post, "Copyright Laws & Social Media: A Small Business Guide."
How to Legally Tweet and Retweet
So how can you keep your small business out of a costly and reputation-damaging lawsuit? When you use social media for marketing and to connect with prospects, be sure to only use images and content that aren't copyrighted.
For example, you can generally tweet, post, pin, and share work that…
- Exists in the public domain.
- Is covered by a Creative Commons license (so long as you comply with the terms of the license).
- You have permission to copy (e.g., content or images that have a "Tweet / Pin This!" button or link on the site where you originally saw it).
When in doubt about whether or not you can post someone else's images or words on your social media page, ask the creator. The worst they can do is refuse your request, and then you know for certain that you dodged a bullet.
And to ensure your business is financially guarded if you ever make a social media marketing mistake, consider carrying a small business insurance policy that steps in when you're sued for libel, slander, privacy invasion, and copyright violations. Learn more about advertising injuries and the perks of adequate insurance coverage in our post "What Is Advertising Injury and How Does It Affect Social Media Marketing?"