'Can I use your picture?': Copyright advice for working with eyewitness media fairly from #IJF16

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Copyright is an important concern for news organisations who rely heavily on social media to source eyewitness footage in their reporting.

Attributing material to the wrong person or worse, not asking for usage permission from the person who took the image or video, can have an impact on the relationship of trust between journalists and their audience as well as result in serious legal implications.

At the International Journalism Festival in Perugia on Saturday (9 April), Jenni Sargent, managing director of First Draft News, and Adam Rendle, senior associate at international law firm Taylor Wessing, explained the copyright aspects news outlets should be concerned with when using user-generated content (UGC).

"Just because UGC is on a social platform, that doesn't mean there is no copyright," Rendle said.

"There is and it remains in the hands of the person who created the footage – it does not belong to the platform."

Rendle also pointed out the four C's of using eyewitness media from social networks: control, credit, cash and conversations.

"People are asking for retribution because they are becoming very aware of the value of their content, since news organisations are making money from that material."

Who owns the copyright?

Here are some questions Rendle said ought to be asked in the initial phase of verifying material from the social web:

• Who owns the copyright of the image or video you want to use? Make sure if it's the person who made the material publicly available or the person who actually took the footage.

"The question shouldn't be 'is this your video?', it should be 'did you take this video'", he said. "Otherwise you're seeking permission from the wrong person and that's a waste of time."

• Are there any privacy implications? If a video posted on social media is showing people doing private things, you need to go beyond and ask them whether or not they have given permission for the material to be recorded and/or posted.

• Are there any third party rights embedded in the UGC? "If it's a meme or a mash up, it can easily be material from a music video or a TV show, so make sure you double check its origin."

Asking for permission

There are certain risks that come with seeking permission – bombarding people with potentially uncomfortable requests, being denied the use of material or being asked for financial compensation.

But "if you're trying to create trust and build a relationship with your sources or the community, treating creators of material fairly is important," Rendle pointed out.

News outlets should communicate clearly with eyewitnesses, without using jargon, and remember that even if a person has given permission, they have the right to withdraw it at any time unless a contract has been signed.

He advised journalists who are asking for permission on social networks to take screenshots that directly connect the posts containing the material someone has posted with their request and the reply they received, to avoid confusion, especially if an eyewitness has posted several images or videos throughout the day.

What constitutes fair use of eyewitness media?

"The quickest way for journalists to illustrate a story is to go to social media, but it's important to consider what the benefit of using this photo is in the public interest," said Rendle.

News organisations should "make a judgement call", he added, and decide for how long and how often they want to rely on exception to this rule.

"If something has been initially shared on WhatsApp and someone there has made it publicly available on social media, chances are the person who created the material hasn't given permission.

Embedding the tweet or Facebook post containing the image on their site, rather than the actual image, can act as a safeguard for news organisations, Rendle said, but "even then you should think about the privacy implications".

Crediting is important

While financial retribution might not always be sought by eyewitnesses or photographers for their material, written credit should always be provided.

Rendle pointed out that EU copyright law requires the source to be indicated and named at all times, "unless it turns out to be impossible".

He said a crediting technique should be built into the process of using UGC and journalists should ensure the correct credit information – name of author, date, location – are "captured at the stage of verification".

What happens when it all goes wrong?

BuzzFeed, CNN and CBC are just some of the media companies who have been sued for inappropriate or illegal use of user-generated content and the impact on the newsroom can be both financial and moral.

In most scenarios, the damages a photographer or eyewitness can claim if their material has been used by news outlets and profited from will by far exceeded the value of the license fee they could've paid to avoid a lawsuit.

"We're not just talking about breaking news, eyewitness media can pop up in every situation," Rendle said, "which is why this discipline of fair use and verification should be built into news organisations' workflows and training."

For more information on copyright law and user-generated content, check out this step-by-step guide from First Draft News.

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