copyrightsintellectual propertyThe perils of using other people’s photos or videos

January 30, 2019

By Eric D. Morton

It takes a lot of restraint these days to pause when we find something of interest on social media.  The impulse to re-post or reuse social media content is a sign of the times.  But before you reuse something you find on your own website or in your social media, beware.  Doing so may very well be copyright infringement.  And the penalties for infringement are severe. Every few years, we have another salient example of copyright infringement in the news, so the lesson bears repeating.

President Trump crashes a wedding

The Trump National Golf Club was the venue of a wedding in 2017 and it turns out President Trump crashed the wedding.  One of the wedding guests took a photo of the President with his phone.  He texted it to a friend, who texted the photo to another person attending the wedding, who then posted the photo on Instragram. The photo went viral and was picked up by media companies who used it on their sites.

The photographer promptly obtained a copyright registration for the photo and went on to sue said media companies–TMZ, CNN, the Washington Post, the Daily Mail, and Hearst Communications (who owns Esquire)–for copyright infringement. All the defendants settled except Hearst.  In December, after Hearst and the plaintiff both brought summary judgment motions, the court issued a 30-page ruling to elaborate on why Hearst could not rely on a fair use defense and why the plaintiff was entitled to summary judgment on the issue of liability for infringement.  The court ruled the issue of whether Hearst’s violation was willful as a disputed fact suitable for a trial on the evidence.

Photographs are property

The lesson to take away is this:  a photographer that takes a photograph owns the copyright to it. The same can be said for videos and blogs,or other writings.  Even when a photo is texted to friends and posted on social media, the photographer remains the owner of the copyright.  Hearst argued that texting the photograph to a friend and the posting on social media diminished the copyright to the photograph.  The judge disagreed. Posting, texting, or sharing do not diminish an owner’s rights to determine how a photograph or other copyrighted material is used.

I’ve counseled many business owners threatened with legal action for infringement when their web developers or employees have used photographs or other media on their websites without the permission of the copyright owner. As this case demonstrates, even major news orgnaizations continue to stumble over basic copyright law.

Website developers and social media platforms are constantly urging the use of photos and videos to enhance search engine optimization (SEO).  Business owners beware:  you must own the photo or video, or have permission or a license to use it, before you add it to your own website or use it in social media.

Eric D. Morton is an attorney and the principal of Clear Sky Law Group. He focuses on business and intellectual property law, including copyrights.  He can be reached at 760-722-6582, 510-556-0367 and emorton@clearskylaw.com

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