by David Newhoff, Illusion of More — October 26, 2020
No one can deny that social platforms have helped launch or advance the careers of many creative professionals who might otherwise not have found their fans and consumers. Whether it’s a bedroom-to-Grammy-Award story like Billie Eilish, or my sculptor/painter friend attributing a recent spike in sales entirely to Instagram, the existential necessity of social accounts for most artists is largely a settled question.
But the demand to curate a social presence also comes with a degree of risk in a landscape where the rules—legal, ethical, and economic—keep changing.
Creators, most typically visual artists, face various challenges when displaying their work on social media. For one thing, a widely held misconception persists that once a work is uploaded to a social site, it becomes part of the commons. It does not. At least not as a matter of copyright law.
But as a practical reality, when infringement becomes rampant and the creator is powerless to chase it, the work might as well be in the public domain. Further, as has recently come to the foreground in a handful of U.S. legal disputes, most creators are probably unclear about the licenses we all grant to social sites the moment we create our accounts.
None of us reads those baroque Terms of Service (TOS), and we’d be hard-pressed to understand them if we did. Everyone’s material, even those vacation photos, is potentially vulnerable to use without permission, all users should at least understand that posting does give up some control of what is posted.
But professional creators should seriously take a moment to decide what they upload with an awareness that, among Instagram’s 17,000-word TOS, the platform obtains a “non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content….” What does all that mean?
What that means is that Instagram—and all the social platforms have very similar clauses—could, in principle, sub-license any material that has been uploaded to a public account on its platform. So far, the social companies have not engaged in sub-licensing works under these terms, but most users are probably not even aware that they have given the platforms permission to do so.
In April, photographer Stephanie Sinclair sued media giant Ziff-Davis after its site Mashable made an unlicensed display of her photograph by means of embedding a link to the image using Instagram’s API. Sinclair’s claim was initially dismissed on the grounds that, because she uploaded the photo to her public account, she agreed to Instagram’s right to sub-license. The court held that Instagram’s TOS shielded Mashable as an implied sub-licensee.
In June, however, the same judge reversed her dismissal of Sinclair’s claim, largely based on the more nuanced consideration that just because Instagram’s TOS assert the right to sub-license, the platform had not explicitly exercised that right and granted a license to Mashable.
In other words, the potential good news appears to be that a third party would need to obtain a written sub-license from Instagram—that the TOS alone do not automatically grant a license to third parties. There are at least a few other cases recently filed that address similar issues. For instance, readers may have seen headlines stating that Volvo, in a dispute with a photographer over a whole campaign of photographs, has alleged that everything online is there for the taking. This is not exactly what Volvo argued in its motion to dismiss (and there are some unusual circumstances in this particular story), but another court will soon weigh in on the question as to Instagram’s TOS and a presumed sub-licensee’s right to make use of works they discover on the platform.
Even that is too broadly stated because the means by which works are re-posted or shared actually matter for both users and copyright owners. For instance, in the past, Mashable might have been shielded in the Sinclair complaint by what is called the “server rule” in U.S. law.
Until quite recently, it has largely been held by the courts that when a user embeds code in order to cause a page to “point” to a work on a server controlled by another party, this act is not an infringement of copyright. Since 2007, embedding has been considered legally distinguishable from the act of, say, copying and re-posting a work to a web page.
But as a New York District Court determined in 2018, the “server rule” exception voids the creator’s display right, or what Australian law more broadly calls the right of “communication to the public.”
When Breitbart and other media outlets displayed a photograph taken by photographer Justin Goldman by embedding the image from his Twitter post on their websites, the court held that their actions violated Goldman’s exclusive display right. “The fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result,” the opinion stated.
This decision makes a lot of sense to creators, and common sense to anyone who believes that it should not matter how a user causes a work to be displayed on a page they control. As a result of recent opinions like the one in Breitbart et al v. Goldman, it is possible that the “server rule” may be waning as an untenable legal distinction.
For the owner of the material, whether it’s a professional photo or a family snapshot, the experience of having a work used without permission is the same no matter how the use is technologically achieved. And with respect to copyright infringement, the courts may be coming around to this conclusion as well.
As a pair of legal scholars correctly stated in an article for the journal WWD, there is a natural “tension” between copyright and social media. They cite instances in which models, celebrities, and brand owners learned the hard way that just because their likenesses or products are featured in photographs, they still need permission to use those photographs, even with their own social accounts.
Unfortunately for creators, many powerful interests would alleviate the “tension” in these examples by dramatically curtailing the enforcement of copyright (as if it were not already difficult) across the social media landscape. After all, it seems like such a harmless act when, say, Katy Perry shares a paparazzo’s photo on her feed.
But among the problems with weakening copyright in the service of this ordinary social media conduct is that it would principally serve the platform’s interests—and certainly not Perry et al.
As we have seen with social sites’ historically cavalier approach to the difference between information and disinformation, creative works are largely treated as grist for these billion-dollar engagement mills. So, yes there is a tension with copyright, but it should not be the creators who have to loosen their grip on policy.
In the meantime, as long as keeping a social presence is an absolute necessity for most people, these recent cases and developments for professional creators should serve as cautionary tales. We might want to rethink what we publish to social sites and why.
Many experienced professionals, for instance, will never upload any works they consider protected by copyright and will instead use behind-the-scenes or other limited samples in order to direct interested parties to their own websites where it is safer to host material without any hidden Terms of Service. Social platforms are not technically the public domain, but as a practical matter they might as well be.
So share wisely.
About David Newhoff
David is a writer and copyright advocate. He writes the blog The Illusion of More, and his new book, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright will be out on November 1, 2020.