The rules around using other people’s content have been muddied in the age of social media — for journalists, these 10 tips should help
(* The tips and best practices provided in this article have been incorporated in the COVID-19 Social Monitoring Toolkit created by Fathm to help newsrooms deal with working in a distributed environment)
The shockwaves may not have been felt beyond the digital media industry, but a recent ruling by a New York court could have far-reaching consequences for the inclusion of video and photographs in reporting.
The U.S. District Court for the Southern District of New York refused to dismiss a copyright claim made by a photographer after Newsweek embedded one of his Instagram photos in its website.
It has long been an article of faith in media that, while you need permission to take someone’s content off the original platform and repackage it in your own story, you need express permission, directly embedding it is fair game — and you don’t even need to mention it to the owner.
That has been thrown up in the air by the judge’s decision and a follow-up by Instagram in communications with Ars Technica. According to the tech news site:
In plain English, before you embed someone’s Instagram post on your website, you may need to ask the poster for a separate license to the images in the post. If you don’t, you could be subject to a copyright lawsuit
Publishers may now be looking over their shoulders nervously, wondering whether other platforms could follow suit.
My own opinion is that media should be asking for permission — or at least giving content owners a heads-up — far more often than they do. The argument that this would take far to much time presupposes that the tsunami of “content” being foisted on the public daily is a good thing.
(Incidentally, when is the Great Reckoning for gifs going to come, given that most of them are created from copyrighted content?)
There’s also quite a bit of frivolous use of the concepts of fair use/fair dealing, which came into being in an era long before members of the public were producing huge amounts of content with obvious monetary value.
But let’s just say you do believe asking people before you put your grubby paws on their stuff is a worthwhile endeavour — are there ways of smoothing the process?
Speaking from years of experience of discovering, verifying and getting permission for media to use content, I have to say that members of the public have been overwhelmingly gracious, generous and positive when approached. Unpleasant reactions have generally come during times of great stress and, more often than not, attributable to a poor approach (although the prior reputation of particular media outlets has also sometimes — understandably — had a part to play).
Let’s look at a number of steps you can take:
- Decide on the account/s to be used
There’s no hard and fast rule on this. Some media outlets insist on using the official company account, arguing that it gives an impression of seriousness and credibility. Others don’t like this “faceless” approach and prefer their journalists to use their personal accounts.
There’s an argument to be made for either, but in the latter case it’s important that the account’s profile information makes it very clear who the journalist is working for. A link to the official website where a reciprocal link to the journalist’s social media account helps establish bona fides.
2. Be discreet
Where at all possible, private communications should be used. Make every effort to find an email address or phone number or if direct messaging is. available, use that. If you have no option other than to reach out publicly, immediately ask to take the conversation to private channels. Having direct messaging open on a Twitter account helps with this.
3. Be clear and unambiguous
Make sure that content owners know exactly what you’re asking of them. A link to a legal consent document is very useful — although I have seen one major outlet ask people to agree to the terms of a document that consisted of 13 pages of legalese. Don’t try to persuade me that was created with the public’s interests at heart.
4. Avoid language that can confuse
Don’t use meaningless terms like “Is it ok…?” What does that even mean? Words like “permit” and “consent” are clearer.
Also be wary of possible language issues. If English, for example, is not someone’s first language, and you tell them “We will give you credit…”, that can easily be misunderstood as offering some form of payment.
Additionally, many people do not understand how ownership works. “It was taken with my camera”… “My employee made the video…” “It’s mine — my cousin sent it to me…” are all answers I have been given over the years. None of these imply ownership. Unless there is documentation confirming a transfer, the owner is whoever caused the content to be created i.e. the person (even this part has been disputed) who pushed the button.
5. Consider whether reaching out could cause harm
It should go without saying that causing someone’s phone to beep when they are hiding from a gunman is not cool — and yet I’ve seen people in such situations be flooded with requests to use their photos.
Following the 2015 earthquake in Nepal, a trekking group cut off by landslides and awaiting rescue had to send out a message asking journalists to stop calling them as it was depleting precious phone batteries.
There is also the possibility that, upon being contacted by the media, a member of the public — inspired by visions of fortune or glory — could put themselves in harm’s way (“Just a little bit closer…”)
6. Be respectful, courteous and sympathetic
You don’t know what people are going through, or the background to their situation. If someone reacts badly to being contacted, apologise and respectfully disengage. Do, Not. Argue. It’s not good for you, or for your organisation.
7. Don’t assume blanket clearance
If someone gives you permission to use their content, and you later see they have something far better, it’s not open season. It may feel awkward, but you have to ask again. This could be avoided if you anticipate that someone at, for example, a demonstration, will be continuously capturing content; your initial approach could be to ask for permission for all their content for that day or event.
8. Be honest about what you can do for uploaders
Don’t promise “exposure” will be good for them. Don’t assure them you’ll show them where it appears if you don’t know. I’ve almost always found that people are understanding and just don’t want to be misled.
9. If at all possible, follow up
Yes, you’re busy, but it’s worth it for your reputation and that of your employer — plus, it’s just the right thing to do.
Send a link to the story where someone’s photo has been used. Maybe let them know if it’s getting lots of hits. Make someone’s day.
… and finally
10. Don’t forget to say thanks
You’d be amazed how often people fail to do this. It’s similar to the idea of follow-up — just far easier and less onerous. It takes seconds, but leaves a lasting glow.