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Posts Tagged ‘violate’

New York court rules website didn’t violate image copyright by embedding Instagram post

16 Apr

A Manhattan federal court has dismissed professional photojournalist Stephanie Sinclair’s copyright claim against digital media website Mashable, ruling that it did not violate her copyright by embedding one of her Instagram posts on its website. The legal issue arose in 2016 when Mashable published an article on female photographers whose work includes the topic of social justice, putting Sinclair at #9 on its list.

According to court documents, Mashable contacted Sinclair in March 2016 and offered to pay $ 50 to license one of her images for use in its article on female photographers. Sinclair declined the offer, so Mashable instead embedded an Instagram post of the image that Sinclair had published on her public Instagram account.

Fast-forward to January 2018 when, according to the court documents, Sinclair contacted Mashable and demanded that they remove the embedded post from the article on the grounds of copyright infringement. Mashable refused to remove the Instagram post and 10 days later, Sinclair filed a copyright lawsuit against the publication and its parent company Ziff Davis, LLC.

The lawsuit raised questions over Instagram’s Terms of Service, its right to grant sublicenses for images uploaded to its platform, and whether sharing and embedding public social media posts without permission or a direct image license constitutes copyright infringement.

Instagram states in its Terms of Use that while it does not claim ownership of a user’s images, they grant the company a license to use it when they upload the content to the platform. Instagram says that when a user uploads images to its website…

‘…you hereby grant to us 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 (consistent with your privacy and application settings). You can end this license anytime by deleting your content or account.’

Mashable argued that based on that Terms of Use, it had a valid sublicense from Instagram that allowed it to embed the image post on its website. The defendant argued, among other things, that:

‘…because Plaintiff uploaded the Photograph to Instagram and designated it as “public,” she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.’

Sinclair’s legal claim countered this, according to court documents, which cite multiple arguments, including a claim that because Mashable didn’t get a direct image license from the photographer, it shouldn’t have been able to get a sublicense for the content from Instagram. The court disagreed with that argument, however, with U.S. District Court Judge Kimba Wood noting:

‘Plaintiff’s right to grant a license directly to Mashable, and Instagram’s right, as Plaintiff’s licensee, to grant a sublicense to Mashable, operate independently. Mashable was within its rights to seek a sublicense from Instagram when Mashable failed to obtain a license directly from Plaintiff—just as Mashable would be within its rights to again seek a license from Plaintiff, perhaps at a higher price, if Plaintiff switched her Instagram account to “private” mode.’

As well, Sinclair had argued that it is ‘unfair’ that a platform like Instagram is able to force professional photographers to choose between keeping their accounts private or allowing the company to sublicense their publicly shared content because it is ‘one of the most popular public photo-sharing platforms in the world.’

Judge Wood acknowledges the nature of this issue, but ultimately states that:

‘Unquestionably, Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.’

The copyright claim was ultimately dismissed, a conclusion that contrasts the ruling from a New York court in early 2018 on the case of an embedded tweet that featured an image of athlete Tom Brady.

In that case, the court found that embedding such tweets may constitute copyright infringement and the fact they were uploaded to a third-party server like Twitter didn’t change that. The basis of the latest ruling is different, however, focusing on the terms of use the photographer agreed to rather than the ‘server test’ used in the 2018 copyrighted tweet case.

Both of these legal claims follow a different legal case from 2007 in which the precedent was set for how the Internet of today operates: that a person or company who embeds content hosted by a third-party source like Facebook or Twitter are not in violation of copyright, but rather that the hosting company itself is liable.

DPReview contacted Mickey Osterreicher, NPPA’s general counsel, for comment. He had the following to say about this New York ruling:

‘I have not had an opportunity to review the court’s opinion and order in this case so I do not feel it appropriate for me to comment. I will repeat something that NPPA has stressed for many years – photographers read and understand the terms of service or the terms of use on each and every social media platform before agreeing to them or posting on those sites. They also must continue to vigilantly monitor those terms as they are frequently changed and updated.’

Articles: Digital Photography Review (dpreview.com)

 
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Instagram starts demoting ‘inappropriate’ content, even if it doesn’t violate its rules

12 Apr

In a meeting with journalists yesterday, Facebook detailed changes it is making to its family of products aimed at dealing with what it calls ‘problematic content.’ For Instagram, this change means a demotion of content Facebook refers to as ‘inappropriate,’ though the posts don’t violate the platform’s Community Guidelines.

Demoted content will not appear in Instagram’s Explore or hashtag pages, according to a new page on the platform’s Help Center. The demotion applies to posts that ‘might not be appropriate for our global community,’ even if those posts aren’t in violation of the Community Guidelines, the company explains.

Instagram’s Help Center page, seen in the screenshot below, doesn’t offer any visual examples of ‘inappropriate’ content, only providing ‘sexually suggestive’ as one category that will be demoted. This change doesn’t apply to the user Feed at this time, but there’s no word on whether Facebook will lower the Feed ranking of these posts in the future.

TechCrunch has published multiple images from Facebook’s press event that include visual examples of ‘non-recommendable’ content set for demotion on Instagram. Though dealing with certain posts, such as ‘likes’ spam and fake news, would obviously be a good thing for users, other categories encompass large, vague content segments with no clear definition of what is and isn’t ‘appropriate.’

Based on the images from Facebook’s press event, Instagram will demote posts that feature sexually suggestive, ‘graphic/shocking,’ and violent content. Examples include, among other things, images of someone being sprayed with pepper spray, a woman in a bikini and a skull.

The vague nature of Facebook’s sweeping ‘non-recommendable’ categories leaves many users in a state of uncertainty and may reduce the platform’s overall usefulness for certain creatives and brands. Though a user’s existing followers will still see the ‘inappropriate’ posts in their respective Feeds, being filtered from Explore and hashtag pages greatly limits the user’s ability to gain new followers.

Though Facebook didn’t go into details in its press release about the changes, TechCrunch reports that the company will use AI algorithms to determine which posts are demoted. Human content moderators have been tasked with labelling ‘non-recommendable’ content; Instagram will use those labels to train machine learning algorithms on identifying borderline content.

Instagram’s content demotion effort is now underway.

Articles: Digital Photography Review (dpreview.com)

 
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Judge rules RNC didn’t violate photographer’s copyright with unauthorized image use

20 Mar
This is Erika Peterman’s photograph the RNC took from Rob Quist’s Facebook page and altered to use on a derogatory mailer. Used with permission.

In May 2017, photographer Erika Peterman filed a copyright infringement lawsuit against the Republican National Committee (RNC), alleging the organization had used one of her images for a political mailer without permission. The image features Rob Quist, a Democratic congressional candidate who had run against GOP candidate Greg Gianforte in Montana.

Peterman’s image, which was licensed to the Quist campaign, was used by the RNC without permission as part of a mailer that mocked the politician. In response to the lawsuit, the RNC claimed its mailer represented fair use of the copyrighted image, and Montana judge Dana L. Christensen has sided with that argument.

A photo of the mailer that was sent out to Montana residents by the RNC that used Erika Peterman’s photograph without permission. Used (here) with permission.

According to Lexology, the court dismissed Peterman’s case, finding that the RNC had ‘transformed’ the photo adequately enough to claim fair use. Only small visual alterations were made to the image, such as cropping it to fit the mailer, and those edits alone weren’t sufficient for it to be considered transformative.

However, the court found that the image’s use on a mailer that criticized Quist had transformed the work, stating that the image’s inclusion as an element in this critical media qualified as fair use. The court said:

The mailer uses Quist’s musicianship to criticize his candidacy, subverting the purpose and function of the Work. With the addition of the treble clefs and text throughout, the mailer attempts to create an association between Quist’s musical background and liberal political views… In this context, the image takes on a new meaning.

In addition, the court claimed that the RNC’s use hadn’t impacted Peterman’s ability to profit from the image and that Peterman’s had published the image to Twitter and Facebook. By publishing the image on social media, the court stated, ‘it must be assumed that the MDP, Quist Campaign, and Peterman herself would have welcomed reposts, [etc.] by other pro-Quist social media users.’

Ultimately, the federal judge found the RNC’s unauthorized use of the copyrighted image to be ‘moderately transformative and wholly noncommercial [sic],’ stating that ‘the court determines that the undisputed facts establish that the RNC is entitled to judgement as a matter of law.”

DPReview spoke with Peterman via email and she shared the following response regarding the ruling:

I think equating political criticism to transformative use is pretty far-reaching. This decision gives any political party (or PAC) the freedom to use artistic or creative photos of political candidates for political criticism under the auspices of fair use. This impacts me greatly because I do a lot of political photography and work hard to create compelling, creative photos for the candidates I work with. And, like any photographer or artist, I also want to share my work. However, if I know that my photos can be used for “political criticism” without my permission, it creates a major dilemma for me.
And no, I’m not appealing. Not because I don’t think the decision is wrong, because I do. However, even if my decision were reversed and remanded back to the district court for a trial on whether the RNC’s use of my photo was “transformative”, I would again be in front of the same judge and the outcome would probably be the same. Additionally, I would most likely have to pay the RNC’s costs and possibly their attorney fees. That’s thousands and potentially hundreds of thousands of dollars I don’t have.
Last, the judge’s comments about my sharing the photo on Twitter are incorrect. I posted a different photo of Rob Quist on Twitter, but not the one that was the subject of the lawsuit.

DPReview has contact both the RNC and Peterman for comment. this article will be updated accordingly when and if a response is given.

Update (March 19, 2019): This article has been updated with a quote from Erika Peterman

Articles: Digital Photography Review (dpreview.com)

 
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