Copyright still applies on social media: seek consent before helping yourself to content

A viral case of copyright infringement between The Daily Mail Group and a photographer is a costly reminder that newsrooms must seek consent before taking images from social media.

Last month, photographer Alexandra Cameron took to Twitter to complain about her image being published in The Daily Mail and Mail Online without her consent, a credit or payment. She also felt aggrieved that her work had been used in an inappropriate context.

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She then tweeted screenshots of an email in which The Mail had initially offered a "lowball" £700 in compensation. The photographer eventually settled on two payouts of £1500 for the print image and £500 for the online one.

It later transpired that she had the same problem in October 2022. Cameron confirmed to Journalism.co.uk that this case has since been settled but could not disclose a payout amount.

Her experience with The Mail is not an isolated one. She said media publishers of all sizes make this error for two reasons.

Some are simply ignorant, believing that images on social media are fair dealing, no different from embedding a Tweet in an article. Others are more systemic: hastily taking images, focusing on damage limitation afterwards.

Read more: What should journalists do when their copyright is infringed?

Know your rights: what does the fine print say?

Terms of service

If you are using a social media platform, be aware of the terms and conditions, advises David Mascord, a veteran media law trainer and lecturer at Bournemouth University.

Twitter's terms of service, for example, deal with 'your rights and grant of rights content' in clause 3. By uploading content to the platform, "this license authorises us (Twitter) to make your Content available to the rest of the world and to let others do the same."

This is what enables websites to freely embed Tweets into articles (like we have done above). Embedded Tweets include a link back to the account of the original uploader. This is a de facto consent agreement between social media users and websites.

Mascord said that photographers should think carefully when uploading valuable images onto the platform because the posts can be embedded anywhere legally. However, this is not the same as downloading and republishing (lifting) images, like in the case above.

Media law

The copyright of a picture still resides with the 'first owner', even if it is uploaded to social media. Lifting pictures from social media is illegal.

In the UK, the Copyright, Designs and Patents Act 1988 protects artistic works, including pictures, from theft or plagiarism. Unauthorised copying of all or 'any substantial part' of any relevant works is a criminal offence and a civil tort (suffering loss or harm, resulting in legal liability), unless a justification or exemption applies.

Fair dealing

'Fair dealing' can be considered an exemption to copyright if the amount of copyrighted material is required for the purposes of research, criticism and news reporting - but it does not typically apply to still images. It is mostly used for short audio or video clips.

While there is no statutory definition of fair dealing, the guidance is based on what a "reasonable person" would deem acceptable on two criteria:

• Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair
• Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually, only part of a work may be used

Lifting copyrighted images for commercial news writing causes a loss of revenue and uses the material in its totality. Therefore fair dealing would not apply to copyright images.

Industry codes

In the UK, independent press regulators like IPSO and IMPRESS have codes of practice which uphold news reporting standards. The organisations also handle complaints from the public if codes are breached.

IPSO's Editor' Code of Practice does not have a code on copyright. Mascord says introducing one would help remove any room for doubt within newsrooms.

IMPRESS on the other hand has a brand new and updated Standards Code. Clause two deals with attribution and plagiarism:

• Publishers must take all reasonable steps to identify and credit the originator of any third-party content
• Publishers must correct any failure to credit the originator of any third-party content with equal prominence at the earliest opportunity

IMPRESS confirmed that this applies even to images that have previously been posted to social media.

But what about news audiences?

Many users posted similar experiences on Cameron's Twitter thread. Professionals know they are within their rights to challenge news organisations with an invoice or a threat of legal action.

When The Mail did not reply, Cameron's threat of adding £100 to the invoice for every day the article was still live prompted a response. But general social media users or novices? It is harder for them to know their rights and stand their ground.

IMPRESS' News Literacy Report last year showed the connection between policy and audience trust; that audiences would trust the news more if they had a better understanding of how it was regulated and operated. The reverse is also true: poor newsroom policies can damage public trust.

"Our News Literacy Report found that the public is hungry for greater transparency from journalists about their newsgathering practices. Transparency is a cornerstone of public trust in journalism, which is desperately low, and failing to credit and attribute content properly only serves to undermine the profession further," IMPRESS said in an email to Journalism.co.uk.

"With the rise of AI and advancing technology in the industry, now more than ever journalistic content must mark itself out as a product of distinction by adopting this best practice."

The Daily Mail Group was invited to comment but did not respond.

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