Sunday, June 17, 2018

Dangerous Embedfellows And... Death Of The Meme?

Imagine you happen to be in the right place at the right time, and you snap the perfect photographic scoop of a famous person doing something newsworthy.

In your excitement, you share your photo with a few friends on Snapchat. You forget that, while once upon a time, Snapchat was a place where you could show a photo to chosen friends for a few seconds, and then the photo would vanish, now those friends can capture and keep those tantalizing shots.

Then, it dawns on you that you could probably sell or license that photo to a newspaper.

Too late. One of your erstwhile friends snags the sneak peek, and uploads it (thus infringing your copyright) to Twitter. Twitter does not warn your sneaky friend that he (or she) must have written permission from the copyright owner before they can legally upload a picture. Now, by virtue of Twitter's TOS, that thieving friend has given Twitter a limited license (albeit perhaps a license that friend had no right to give) to further publish and distribute that photo.

Then, a news network (perhaps even the last one on this planet to which you would willingly give free content, or perhaps your first choice for a juicy sale) embeds that valuable picture to illustrate a story, and they publish it. Now, your chance of selling that photo is gone forever.

Breitbart believes that, because they merely "embedded" a Twitter thingy, and didn't host your .jpg on their servers, they are free and clear of liability. Maybe not.

The inspiring predicament is discussed in real life detail by Jack A. Wheat blogging for the law firm McBrayer McGinnis Leslie & Kirkland PLLC in Court In Copyright Case: Don't Embed That Tweet!

Apparently, the court decision in favor of the photographer is being appealed. Eventually, it may go to SCOTUS.

For our UK readers, the law is similar. If you did not take the photograph, beware sharing it. UK legal bloggers Jill Bainbridge and Nicola Rochon for Blake Morgan write a really helpful article titled Sharing photos online - the risks of Copyright Infringement.

Just because a social media platform makes it possible, nay easy, for you to upload someone else's stuff to their site does not mean that you should do so, or that you are legally on safe ground if you do so. It would not be hard for Facebook, Twitter, Google, Ebay, et alia to develop a pop-up before you physically could proceed to upload a photo: "Did you take this photo yourself?" Yes/No  "Do you have written permission from the person who took the photo?" Yes/No.

There ought to be similar pop-ups on other user-generated-content reliant sites. "Did you write this e-book?" For instance. "Did you write all 100,000 ebooks on this DVD?"

Saquib Shah, writing for the Sun, warns UK readers (and the rest of the world) that Memes may be in mortal peril.

The problem with memes is that they rely on often-copyrighted images or movie clips that are appropriated by busy internet users, "transformed" (not very much) by users who add text or other edits to communicate amusing social or political commentary.

Can people no longer communicate without disrespecting other creators' copyrights? Would it be respectful to that fine actor, DeNiro, to take his recent stage pose with fists at shoulder level and edit in a MAGA banner between his raised hands? Do actors who roll their eyes in one context necessarily welcome their eye roll being used as commentary on any topic?

Here is a link to the proposed EU law.

It is perhaps a sad state of affairs if those who object to the proposals really believe that people cannot freely and clearly (and wittily) put their thoughts and opinions and knowledge into writing.... or emojis.

All the best,

Rowena Cherry

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