Enrico Schaefer - November 19, 2019 - Internet Law, Social Media Lawyer, Uncategorized
In this podcast, social media influencers and celebrities will learn:
Today on TechLaw Radio, we’ve got Charlie Clark and he’s done some really interesting work for us and research for us as we continue to help social media influencer understand their business model, understand their rights, understand how to license their copyright-protected work, how to license their name and likeness and their publicity rights. Listen to this podcast below…
Interview Transcript: Detroit, MI: Many social media influencers make their lives from their Instagram photographs. Influencers get paid to do a post, and they will license their photograph to the brand looking for an endorsement. They sometimes further license the right to reuse the influencer post to the brand for use on the company’s website or in other advertising. The next thing that often happens is those third-party websites that make their money from advertising revenue embed or repost the Instagram photograph onto their website.
Oftentimes, the website uses the influencer’s photograph in a way that ‘pretends’ to be newsworthy when it is just clickbait to drive their own advertising revenue. The more famous the celebrity or influencer, the more likely third-party trolls will seek to monetize the influencer’s copyrighted works without permission, compensation, or license.
This type of copyright infringement is rampant in the influencer market. And while some celebrity influencers conclude that ‘any press is good press’, more sophisticated influencers work hard to control third-party uses, demand compensation, or use the DMCA take-down process to have their photographs removed from third-party websites.
These YouTube channels and pseudo-media outlets are using influencer Instagram photos and videos without permission, license, or compensation. The first question every influencer or influencer attorney should ask is, “how is the photograph being used?” While inserting a hyperlink to the influencer’s Instagram post is typically lawful, embedding the post raises issues of copyright infringement and a possible violation of publicity rights.
The influencer owns the copyright in these photographs and videos, yet you see them used all over the place without permission. And, of course, these pseudo-news blogs and these websites want to use the “fair use “defense and say, well, we’re reporting on this Instagrammer, so we get to use their photographs and their Instagram posts or photographs of their Instagram posts without permission, without a license, without compensation because we’re going to now comment on that post.
I think a lot of people, Charlie, are going to be surprised to find that you can’t just use an influencer’s post on Instagram, for instance, without permission, without a license, without compensation even if you’re a TMZ-style website or you’ve got a YouTube channel where you’re commenting on the influencer space. It’s not a free-for-all that there are real ramifications for using these Instagram photographs without permission from the copyright owner or the influencer.
If you happen to be one of these media players, if you’re running a YouTube channel that’s doing hundreds of thousands of views a week, and you’re doing a bunch of stories on influencers, and you’re showing those Instagram photos, you could get sued for copyright infringement.
The research is pretty clear. There’s some emerging case law and, of course, the existing/pre-existing analysis under copyright law all supports the fact that an influencer can have a viable cause of action for copyright infringement, not to mention name and likeness use that’s not authorized, if some of these third-party websites, YouTube channels, etc., use the photographs of the influencer without license or permission. Tell us a little bit about what your research found.
Charlie Clark: On that point, there’s a lot of those pseudo-news outlets that are trying to hide behind the fair use doctrine under copyright law. To qualify for fair use, you must use the work for purposes such as criticism, comment, news reporting, education, scholarship, or research.
Many people don’t know that those are just prerequisites to get yourself into the analysis, and there’s much more that needs to be considered to determine if that use is actually fair use under the Copyright Act. You need to go through four factors in your analysis to determine if it is fair use.
Those include the purpose and character of the second use, including whether it’s for a commercial nature, the nature of the copyrighted work concerning whether it’s published or whether it is highly creative, the amount and substantiality and portion used in relation to the copyrighted work as a whole, and the most important factor is the effect on the potential market for the value of the copyrighted work or its derivatives.
We’ve seen in the case law that there’s definitely going to be a factual analysis on a case-to-case basis. All the factors will be explored and weighed together in light of the purposes of the copyright. We’ll not automatically grant deference to a pseudo-news outlet because they’re supposedly commenting on the purported work.
Enrico Schaefer: It’s really interesting, Charlie because you got all these consumers, third-party websites, YouTube channels, etc. And they assume that content posted on the Internet is inherently free and that you can do whatever you want. And it’s just not the case. This perceived free culture is a material conflict with the creator, with the copyright owner’s interest in maintaining control over the reproduction and distribution of their copyright-protected work.
You’ve got this tension between the copyright owner’s rights in the works and their need to control what happens with their works online and offline. And, of course, this media frenzy to be able to report on really clickbait-type items, which often are influencer stories. But the message here is clear.
Just because you’re reporting on influencers does not mean that you will escape a copyright infringement lawsuit and potentially lose that copyright infringement lawsuit if you start using Instagram photographs of influencers without permission or likeness — that you use their name and likeness without proper permission in some cases.
Although the copyright will be a broader level of protection for the influencer than name and likeness if some news and commentary is going on with regards to that person. So let’s break this down a little bit. You’ve got this free-for-all going on in social media, where you’ve got every top influencer out there — they have baked into their business model a lot of followers and a lot of clicks.
And what that means is not only do they get to monetize that, but you’ve got all these piranhas trying to monetize them because of their popularity. And so to have a media outlet or a pseudo-media outlet that is using the celebrity’s celebrity to drive their own traffic creates this kind of issue of is this fair use of reporting and news or commentary. Isn’t it just that these websites are trying to drive clickbait traffic to increase their advertising revenue?
Now no one’s gotten too far into that in the case law yet. But to me, Charlie, it seems like a loser for the website — for the person who should be licensing the copyright. Because if you ever got into discovery, it’s going to be clear that, yeah, they may be using commentary and pretending that news is a factor here.
But their emails, their business model, everything that’s going on on the SEO side of their business will establish that they’re just trying to use someone’s copyright-protected work so they can make money. Isn’t that going to be the problem for the pseudo-media?
Charlie Clark: You pretty much hit the nail on the head there. Courts are very concerned about whether they’re transforming the work’s purpose, character, message, and meaning and making something new or just using the copyright to gain in their own commercial purposes. And that’s kind of where the first factor comes into play.
A lot of cases lose on that factor alone because the outlet is just using the copyrighted material for their own gain without ever changing anything or doing anything different or even reporting on any real news that is not subject to protection from the copyright holder.
Enrico Schaefer: To have a news outlet that’s a legitimate news outlet that does legitimate reporting day in and day out use an Instagram photo to comment on that photo — that may still end up being copyright infringement. And a jury could still hold against that news outlet. And they’ve got a lot more evidence that — [they’re other people] went to school.
They’re publishers. These folks have been trained in journalism. They have all kinds of other stories going on. And they’ll have a lot of evidence to at least throw up there in terms of fair use. Most of the uses we see from celebrities and social media influencers online, where they’re reproducing the photographs or the Instagram posts for their own website purposes — there’s just no question what’s going on there.
They’re just trying to drive traffic. And they’re not going to have that same level of protection as even CNN or Fox News, which then brings us to the next thing I want to talk about is there was a case against Fox News as a result of the use of a photograph that was reposted on a Fox News Facebook page. Tell us about that.
Charlie Clark: Right. You’re referring to the Fox News v. Pirro case, correct? With the Fox News reporter using a copyrighted photograph from 9/11?
Enrico Schaefer: Exactly. Exactly. Here, you have a legitimate media outlet that has used someone’s photograph and put it on their Facebook page — added to that photograph, i.e., potential transformative use as part of the fair use defense. And yet, they filed a motion to dismiss, and Fox News lost that lawsuit. Tell us a little bit about what the facts were there.
Charlie Clark: Essentially, a Fox News reporter used this copyrighted photograph that a photographer had taken during the commotion of 9/11 of firefighters raising a flag right near Ground Zero. They juxtaposed that photograph with the very, very popular, well-known photograph of the soldiers raising the flag in Iwo Jima during World War II.
On the anniversary of 9/11, they posted the juxtaposition photograph with the caption #neverforget on a Fox News Facebook page. They made the argument that they made this dissemination in a transformative way in that it signaled Fox News’ participation in the ongoing global discussion concerning 9/11.
But the court ultimately rejected this argument, and they found that even the slight alterations and additions to the original photograph only minimally altered the content, message, and meaning. And it began to constitute the creation of a new aesthetic, new information, new insights, or understanding required for a finding of transformative purpose.
Enrico Schaefer: Yeah. So essentially, Fox News remained at risk for copyright infringement. And I don’t remember from that case whether the photograph was copyright registered. But what social media influencers need to know is this — number one, your most popular photographs or your Instagram feed, you need to find a way to register those with the copyright office.
When you register your copyrights, not only are you entitled to a reasonable royalty from unauthorized, infringing third-party use, including from potential media outlets. But if you’re a registered copyright holder, you get to wield statutory damages of up to hundreds of thousands of dollars or more for unlawful use. So not only can you say, hey, you owe me a reasonable royalty as a minimum, which might be thousands or tens of thousands of dollars, but now you potentially owe me statutory damages.
Plus, potentially, you have to pay my attorney’s fees if you do not resolve this lawsuit or this threat letter sent for copyright infringement by the social media influencer or, typically, the social media influencer’s attorney. So message to all of you influencers out there — work with a copyright registration attorney — a copyright infringement attorney — to ensure that your Instagram photographs are protected by registration and not just through common law rights.
It’s going to give you really good leverage to protect your copyright. The risk that Fox took — of course, I think that case ultimately settled. But the risk that Fox took would have been for statutory damages of six figures or more for unauthorized use if they had not resolved the matter. So this first element that you noted was the character of the work and how the alleged infringing party has used the work –let’s take that. We know what happened to Fox News. They used it to comment.
They used it as a newsworthy item. And yet, the possibility of copyright infringement still existed. What does that mean for these bloggers or YouTube channels that want to use these Instagram photos of celebrities and influencers without permission or license? Because they’re kind of in the same boat as Fox– and maybe not even in as good of a boat. Their boat may be leaking water more than Fox’s, given that they are driven purely by traffic.
Charlie Clark: The way those YouTube channels all work is they operate on ad revenues. When they post a video, and they have an x amount of subscribers, they can get x amount of money from ad revenue via YouTube. That makes their work [of] a commercial nature, which is one of the main points in the first factor of the test.
If you’re making money in any capacity off of the unauthorized use of a copyrighted work, then you’re at risk of losing that first factor of the test on that alone. Mix that with the fact that you didn’t transform the copyrighted work’s message, meaning, or content, and you’re in deep water pretty quickly there with the YouTube channels.
Enrico Schaefer: There’s the Elvis Presley Enterprises v. Passport Video case where you’ve got, again, an entertainment company that uses a bunch of footage of Elvis Presley in order to tell the story of Elvis. And they provide voiceovers on top of the photographs just like these YouTube channels do. And yet the court found that adding a voiceover and some commentary is not transformative of the original work.
In this particular instance, the defendant, in that case, remained potentially liable for copyright infringement. That you have to if the purpose of your YouTube channel or your blog is commercial, you better get permission or license or pay for a license to use those Instagram photos or you are at serious risk.
The second factor is what is the nature of the work itself. And the things that the court will look at are is this just some random thing, a random photograph that gets posted to Instagram, or is there an element of creativity to the work that gives it broader protection. Talk a little bit about that factor.
Charlie Clark: In the second factor, courts usually note that there are works that are closer to the core of the intended copyright protection. And they align highly creative works closer to that core of the protection. You can think about a factual work –a factual-based paper– versus a photograph that an Instagram social media influencer would typically post. They often hire professional photographers to work with them to get a great aesthetic and good lighting.
They’re adding filters and editing their photos. It’s probably undisputed that an Instagram photo from a social media influencer will be considered a highly creative work. It’s going to be closer to that core of copyright protection intentions. And it will be subject to high copyright protection under the second factor as opposed to an academic paper or something more factually founded rather than created.
Enrico Schaefer: If I were to post on Instagram as I sometimes do, but I don’t have any commercial aspect to what I’m doing on Instagram, and I might do a lot of random stuff that I don’t put a whole lot of thought into, etc., I might still have copyright protection there.
But it’s going to be a much lower level of protection than an Instagram influencer or celebrity that is very selective, highly involved in the editing and photograph process, that’s very, very careful about what they’re putting online, how they’re putting it online, which photographs they’re using, which filters they’re using, how those photos have been edited.
The more effort and time you put into those types of factors, the more protection you will get just by looking at what the copyright owner does in relation to the work.
Charlie Clark: There’s definitely going to be a higher degree of deference to professional photographers, people who are using the photographs for commercial means rather than just point-and-shoot pictures. However, even in a case where it was, I think it was [Munn v. Mia Magazines].
They found that a photo that was just a point-and-shoot photo of a wedding was generally viewed as a creative, aesthetic expression of a scene or image, and it has been subject to that high degree of protection from copyrights. But you’re going to have a better case in the case of a social media influencer, for sure, in the creative aspect of your work.
Enrico Schaefer: If you happen to be on the media side of the pseudo-media side of the equation, you need to be aware that there have been courts that have found really casual photographs that don’t appear to have much thought put into them also receive copyright protection. And so you can imagine if a random photo at a wedding taken in the spur of the moment can get copyright protection and require a license that, certainly, influencers who are very meticulous about what they’re doing and how they’re doing it.
Good luck defending yourself from a copyright infringement case against an influencer if you’re not getting an appropriate license to use that photograph. Now that takes us to this third factor, which is the amount and substantiality of the work taken in relation to the whole and the purpose of copying. So this question of the value of the materials, how — in relation to the purpose of the copying — does that factor work, and how would it be interpreted in the influencer/pseudo-media environment?
Charlie Clark: Based on the language within the factor, you can assume that when you’re taking an entire photograph from a social media influencer’s Instagram page, it’s going to be substantial in that you’re taking the totality of their work. Social media influencers are going to have a very big edge in this factor. And then all these factors bleed together in combination with the fact that they’re taking it for a commercial purpose. It will also favor the social media influencers in this factor.
Enrico Schaefer: Yeah. And obviously, you could scale up from a photograph into musical compositions or literary works where there’s more substance, there’s more breadth to the substance of the copyrighted work, which may increase the level of protection, especially when someone’s using a big chunk of it. But the reality remains in the context of social media, if you use the entirety of someone’s social media post — the photograph, the words, the text — that’s the point.
That’s how social media influencers make their money by posting. And sometimes, they’re just endorsing someone else’s product on their post. But if the social media influencer has the right contract in place, that contract also talks about what the brand can do. Can they share that Instagram post?
Can they take an image of that Instagram post and use it in another context on their social media platform? These are things that the social media influencer gets to control. And through their influencer contract, they can say yes or no at every point. Can the brand use that photograph on its website? Again, yes or no. The social media influencer that owns the copyright, that has the rights in that gets to decide.
The beautiful thing about copyright law for social media influencers is that you can scale up and down on price depending on how much gets used. So if someone wants a post, and it’s going to live only within your platform, then that could be a lower cost than, oh, and we want to put your post on our platform or we want to put your post [or] screen-capture on our website. Those are additional license rights that would be required in the contract that should drive up the cost.
This allows the social media influencer to say, well, okay. Your budget is x, brand — speaking to the brand. Your budget is x, so I can do this for you for x. But you only get a license to this point. If you want more rights, if you decide you want to put my social media post/photograph on your website, come back and we can license that as well.
The social media influencer is losing all the value of what they’ve done if they’re not protecting their rights against all these media players who are just simply using their work to drive traffic to their websites. One of the fair use arguments we hear all the time is, well, I’m commenting on that photograph, so I have to put the photograph in there to comment on it. And it’s an easy thing to say. It’s a hard thing to prove.
Do you need that photograph? Because if you’re going to do a story about the social media influencer influencing, then you don’t need photographs to do that. You can write the story. If you’re going to talk about a specific photograph, then the question’s going to be, well, if your purpose is commercial and you’re really just driving traffic, then you’re not going to get very far on a fair use defense saying, well, I was commenting on the photo.
I had to put the photo in the story to comment on the photo. In most instances, the evidence is going to be that that’s relatively contrived — that the real purpose is to use the photograph so they can drive traffic and that the commentary on the photo is there as an SEO tool, not as really fair commentary. So this third factor will again weigh in favor of social media influencers and celebrities in many instances. This brings us to the fourth factor.
Let’s talk about the fourth factor. The fourth factor is the effect on the potential market for or the value of the copyright-protected work. And it’s a very important factor. So let’s break that down — the effect of the use of the work on the potential market. So this is speaking from the influencer’s point of view.
If the copyright isn’t protected, if the influencer does not control the use of that photograph, or if some third party comes in and starts using their Instagram photograph without permission or license, think about the ability it will have on their ability to monetize those photographs. Tell us how this factor works, Charlie.
Charlie Clark: In this factor of the test, you’re looking at the value of the license. If you’re going to have a media outlet take your photographs and use them to tell a story about you, that’s diluting the value of the licensing rights that you have with legitimate companies that would like to otherwise license your photograph. Because why would they if they could use it for free under this fair use curtain of a defense? So if you’re not protecting your rights, you’re actually losing a lot of monetary value that goes along with your copyright.
Enrico Schaefer: We understand that many social media influencers and celebrities really don’t understand the nuances of all of this, so they don’t sometimes protect their copyright as well as they should. In fact, in most instances, they don’t. But in a lot of cases, they don’t know that they can. And if you’re a social media influencer, think about it this way. You require the brand you are endorsing to pay you money to use that Instagram post.
And yet, you will allow a pseudo-media, blogger, or YouTube channel to use that same post for free? Think about the impact on value just on that one example. The value of your post goes down. The ability of you to convince someone else to pay for the use of that photograph goes down dramatically if everyone else gets to use it for free.
This is something that social media influencers will continue to learn about and understand at a higher level as they continue along with their business model and as they learn about copyright, which is the essence of what their business is all about. It’s these photographs and the copyright protection and ownership they have of the photographs and the importance of, as you mentioned, protecting their photographs from infringement.
If you don’t protect your photographs from infringement, it is much harder to enforce them down the line. And so social media influencers need to understand copyright law. It’d be like a neurosurgeon not understanding how to use a scalpel. It’s the core of your business model. Yes, your name and likeness. Yes, your publicity rights. But also your copyright-protected photographs and works.
If you’re having a photographer or a friend or a boyfriend or a girlfriend take the photograph, whoever’s holding the camera owns the copyright-protected works unless there’s an agreement that those works will be owned by the influencer or celebrity.
In most cases, if the influencer or celebrity has got someone following them around taking photographs, they’ve also got a work-for-hire agreement with that photographer, which assigns all of the copyright to the influencer so that the influencer can claim copyright ownership for DMCA takedowns and whatever. So that’s really important.
Make sure you have those copyright assignment documents in place so that when it comes time to enforce the copyright in those photographs, the influencer is the person in control. They can legitimately say I am the copyright owner.
Now next time — on the next show — we’ll talk a little bit about DMCA takedown notices.
And those, of course, are the other half of the trademark or the copyright infringement threat letter program, where instead of the attorney sending a threat letter to the pseudo-media player, to the YouTube channel, to the blogger, they file a DMCA with the web hosting company or the social media platform, saying I own copyright. And then your post, your YouTube comes down. The provider, YouTube, what-have-you has an obligation to remove that from the Internet.
You can counter-respond to that notice and maybe get it back up, but at the end of the day, your risk is that all this work you put into that content gets removed. All the traffic you are hoping for that content cannot exist because the copyright owner can have that removed from the Internet.
And in one of the next programs, we’ll put DMCA on the table and educate our social media influencer friends and clients about the DMCA takedown notice they have in their arsenal of copyright protection. Charlie, thank you for being on the show today. Really appreciate it. We love our law student listeners. We’ll get you back on the show soon, okay, Charlie?
Charlie Clark: Sounds good. Thank you.
Enrico Schaefer: All right, everybody. That’s it for today. Again, to our clients, prospective clients, all the social media influencers, law professors, and law students, thank you very much for listening to the TechLaw podcast. We’ll see you next time.
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