Sharing content using social network platforms: a copyright perspective
di Valentina Borgese
Introduction
The dissemination of portable devices allowing the use of internet (e.g. smartphone, tablet, netbook, smartwatch, etc.)[1]has been accompanied by the need to create a ‘Digital Ego’ corresponding to the transposition of the real life into the digital world and the digital identity itself, resulting in the loss of privacy and confidentiality (both real and digital).[2]
This ‘digital life’ tends to be carried out on social networking platforms that are characterised by a mandatory registration in order to create a personal profile, protected by a password and customisable by users with regard to the information they want to share (gender, date of birth, residence, etc.).[3]It is very important to notice that a social networking site can be regarded as a user-generated content (UGC) platform where the user is, at the same time, a customer and a creator of the contents.[4]
Social networks are often involved in litigations related to defamation[5], imagine right[6], criticism[7], child sexual abuse images[8],,privacy[9], right to be forgotten[10], copyright[11], separations and divorce[12], employment relationship[13], unfair competition.[14]
This essay is designed to provide a brief overview of the use of social network platforms to share copyright content and in particular photographs and the implications of these activities in light of common European copyright principles. I will first introduce the opposing interests of the stakeholders involved; in the second part I will focus on the applicable legal regime and its boundaries; the third part will consider a case study; part four of this essay will describe the ‘pinball effect’ between social networks. Finally, in the fifth part, I will argue for the need of a reform.
1. The opposing interestsof the stakeholders involved
In the context of social networking sites, the main stakeholders involved are the owner of the platform and the users; the latter could act for a private purpose or with a commercial interest. I will consider only the use of the Social Network to share content, including images and photographs both professionally and amateurs which are relevant from a copyright perspective because could be used without the permission of the author.
Under EU law, the provider of a Social Network service could be considered either as a hosting provider or as a content provider[15]. In the first scenario, the Social Network offers to the user the use of its platform without data-processing services: it could be considered only an intermediary between its users; in the second hypothesis, the Social Network offers both the platform and the contents it wants to share.[16]Even if the Social Network service could be a content provider under the eCommerce Directive also when the content is produced by the user I will consider only the first case, taking also into account that a Social Network does not have the informative function that is typical of newspapers or news programmes.[17]
In the light of the above, users of a Social Network service allowing the dissemination of photographs, could be celebrities which use the platforms both for privately and commercially purposes and photographers which are professional (included the so-called paparazzi) or amateur of the other part. With regard to the former, it will be relevant the imagine right i.e. the expression of a personality in the public domain[18], privacy right and freedom of enterprise[19]; for a paparazzo, even if they are not subject to the rules laid down for a journalist and in particular the free expression of thought, the copyright laws might be relevant as he is the author of the photograph
2. The applicable regime and its boundaries. Are there gaps in protection?
According to the public dissemination of a photography using social networks, ‘regardless of the quality of the image reproduced or the professionalism or amateurism of the author’,[20]we can distinguish different hypotheses: the first case in which the user shares an images that portrays themselves although the picture was taken by a photographer/paparazzo (independently or on commission of an editor); the second case in which the picture posted on the personal profile of a user is used by a third party; the third scenario in which the user is the photographer and posts the picture and the last scenario in which the picture is used by Social Network[21].
From a copyright perspective and in particular according to the authorship, it is clear that the publication of a photograph on the personal profile of a social network is not in itself evidence of ownership of intellectual property rights on that content but from this an ownership presumption of the contents may rise on the owner of the profile on which they were published.[22]However, the abovementioned doubts regarding the authorship of a digital file and in particular of images can now be solved thanks to the technology that allows the application of technical protection measures or the use of tools such as digital watermarking.
From a different point of view, it could be noticed that,except for cases of commissioned work where the economic exploitation rights are acquired by the client without prejudice to the author’s ownership of moral copyrights[23], the current European copyright rules do not seem to deal with the protection of the subjects portrayed but only the author of the photograph. In fact, only the prior consent of the photographer is necessary in case of exploitation the picture by the subject portrayed or third parties. The favourable rules for the photographer are also evident when there is a public interest: in this case the right to confidentiality is compressed. Finally, if we focus our attention on the right to use the image, we can see that the right of the photographer is also limiting the right of the subject portrayed to a commercial exploitation of their own image. Thus, we are faced with a difficult balance between two equal and adverse interests to the commercial exploitation of a picture: the right of the author and the right of the subject portrayed.
3. A case study: The publication of copyrighted photographs using social networks and the transfer of the economic rights
The issues addressed in the previous section have been the subject of a number of recent cases involving celebrities.
In one case, a famous model[24]has been sued for having posted a picture of herself to her Instagram account without the permission or a licence of the copyright holder of the image.[25]This case proposes the well-known issues involving the paparazzi and the privacy of the subjects portrayed but also the problem of the commercial exploitation of a photographic work by the photographer: in fact, in the hypothesis analysed here, it is clear that the reposting of a photograph involves the loss of commercial value of the picture.[26]
In a second case[27], a private image of a celebrity was used without permission on a company website and the celebrity is then “tagged” on Instagram in order to sponsor a similar outfit: here, the use of an image already shared on the personal profile of a celebrity is relevant from a consumer perspective as this activity couldgenerate in the consumer the idea that there is a collaboration between the celebrity and the company.[28]
The situations mentioned above have in common the absence of a licence between the photographer and the person who is depicted. Therefore, both the consent to be photographed and to the commercial exploitation of the photographs did not have a formal contractual basis. Moreover, in both the scenarios mentioned above (the use of the picture by the subject portrayed and the use of a private image by a third party) it is possible to distinguish the positive effects of the diffusion of the photographic work which increases the subject photographed notoriety from the negative ones linked to the impossibility of commercial exploitation of their own image incorporated in the photograph whose right belongs to the photographer.[29]
4. The liability of the social network provider and the ‘pinball effect’
The question thus arises as to whether the holder of the economic right to exploit the photograph can take action not only against the person who unlawfully shared the content but also against the provider which permitted that activity.
It is important to notice that the content can be shared in several ways as the deep linking and the surface linking[30]or by downloading and posting the content in a different website[31]. To these activities today has been added another: the re-post or the re-share of a content from one Social Network to another[32]. All of these activities are the heart of what I call here the ‘pinball effect’ i.e. the rebound of a content not only from one user to another but from one social network to another. We need to ask ourselves what rules could apply in the case of interoperability between social platforms, how and if it is possible to understand in which platform the content was first shared on, and therefore who can be held liable in the case of illegal sharing of copyright-protected contents.[33]
5. Is a reform needed?[34]
The brief considerations made in the previous sections beg crucial questions. First, how can the photograph’s ownership be ensured across interoperable social networking platforms? Second, how can the photographer’s exclusive right be limited with respect to photographs portraying well-known personalities? In fact, when a photograph takes a celebrity’s picture what makes photography “important” is not the way in which it was taken but the subject portrayed. From what has been said, it follows the need to rethink the balance between rights in order to recognize those of the subject portrayed prevailing over those of the photographer. Given the above, another consequences could be, in my opinion a) the revocability of the consent to be photographed and inferred from the notoriety of the subject, b) the affirmation of the right of first refusal in the purchase of the photographic work against fair compensation, as if the work had been commissioned, c) the affirmation of the prevalence of the right of commercial exploitation of the image in relation to the subject portrayed and not to the photographer; d) the introduction of an upload filter in order to ascertain not only the content authorship and the ownership but also the approval of the portrayed subject to have been photographed. The above considerations are all the more true as we consider that with the advent of Social Networks the traditional function of photography taken by the professional photographer, aimed at increasing the notoriety of the subject portrayed, seems to have disappeared.
Note:
[1]Francesco Camilletti, ‘Alcune Considerazioni Sui Profili Giuridici Dei Social Network’ (2017) 4 Contratti 451.
[2]Elena Falletti, ‘I Social Network: Primi Orientamenti Giurisprudenziali’ (2015) 7 Corr. giur. 992.
[3]ibid.
[4]Camilletti (n 1).
[5]See Egill Einarsson v. IcelandApp no. 24703/15 (ECHR, 7 November 2017); C-194/16 Bolagsupplysningen OÜ v.Svensk Handel ABEU:C:2017:766; Richardson v Facebook[2015] EWHC 3154 (QB); Monroe v Hopkins[2017] EWHC 433 (QB); Cass. pen. (1) 28 April 2015, 24431; Cass. pen. (5) 13 July 2015, 8328.
[6]See Alfredo Trotta, ‘Social Network e Tutela Dell’immagine’ (2010) 3 Dir. Industriale 282.and Echr-cedh, ‘Guide on Article 8 – Right to Respect for Private and Family Life, Home and Correspondence’.
[7]See Mariele Cottone, ‘Social Network: Limiti Alla Libertà D’Espressione E Riflessi Sul Rapporto Di Lavoro (Il “Like”) – Il Commento’ (2017) 4 Lavoro nella giur. 381.
[8]Kimberly J Mitchell and others, ‘Use of Social Networking Sites in Online Sex Crimes Against Minors: An Examination of National Incidence and Means of Utilization’ (2010) 47 Journal of Adolescent Health 183.
[9]For an analysis on dating mobile applications for men who have sex with men through two interwoven perspectives (the intermediary liability of the app providers and the responsibility for discriminatory practices against the users’ physical appearance) see Guido Noto La Diega, ‘Grinding Privacy in the Internet of Bodies. An Empirical Qualitative Research on Dating Mobile Applications for Men Who Have Sex with Men’ in Ronald Leenes, Rosamunde Van Brakel and Paul De Hert, Data Protection and Privacy: The Internet of Bodies(Hart 2018).
[10]Francesca Russo, ‘Diritto All’oblio e Motori Di Ricerca: La Prima Pronuncia Dei Tribunali Italiani Dopo Il Caso Google Spain – Il Commento’ (2016) 3 Danno e resp. 299.
[11]Eleonora Rosati, ‘Facebook Found Liable for Hosting Links to Unlicensed Content’ (The IPKat) <http://ipkitten.blogspot.com/2019/02/facebook-found-liable-for-hosting-links.html> accessed 7 May 2019.
[12]Facebook Come Causa Di Divorzio’ (Focus.it) <https://www.focus.it/tecnologia/digital-life/facebook-come-causa-di-divorzio> accessed 7 May 2019.
[13]Malte Martensen, Kathrin Börgmann and Markus Bick, ‘The Impact of Social Networking Sites on the Employer-Employee Relationship’, Bled eConference(2011).
[14]In general see Falletti (n 2).
[15]It could be noted that the boundaries are more blurred in case of Social Network aggregation. See ‘Social Network Aggregation’, , Wikipedia(2019) <https://en.wikipedia.org/w/index.php?title=Social_network_aggregation&oldid=892544750> accessed 7 May 2019.
[16]Camilletti (n 1).The author also highlights how in both cases, the activity carried out by Social Network is of an entrepreneurial nature and can be included in the activity of intermediation in the circulation of goods and services but not also journalistic activity.
[17]Falletti (n 2).The author remembers how the unenforceability of the rules on journalism has been affirmed by Cass. pen. (5) 14 november 2016, 4873. It should be notice that Facebook is today an important source of news: although it is not clear if it is a publisher. See Sam Levin, ‘Is Facebook a Publisher? In Public It Says No, but in Court It Says Yes’ The Guardian(3 July 2018) <https://www.theguardian.com/technology/2018/jul/02/facebook-mark-zuckerberg-platform-publisher-lawsuit> accessed 7 May 2019.
[18]This is the context of the legal protection of the infringement of the right to the image on Facebook, as in the case of a false profile creation and publication of intimate photos. See Falletti (n 2).
[19]Camilletti (n 1).The author also remembers how both natural and legal persons can sign up for social networks and that both sometimes use the platform as a tool for so-called social marketing.
[20]Falletti (n 2).
[21]In this case, we need to ask ourselves whether the Social Network could be considered a third party. An analysis of the Social network terms and conditions could help us to find the answer.
[22]Falletti (n 2).For an Italian Case law see Trib. Roma, 1 June 2015, 12076
[23]For the English legislation see Copyright, Designs and Patents Act 1988, s. 85. For an Italian case law see Tribunale di Torino, 13 giugno 2017 n 3115.
[24]Gigi Hadid had already faced a similar dispute in the past. See XCLUSIVE-LEE, INC., v. JELENA NOURA “GIGI” HADID, 1:19-cv-00520 (E.D.N.Y.).
[25]Hayleigh Bosher, ‘The IPKat Gigi Hadid Faces Another Copyright’ (2019) <http://ipkitten.blogspot.com/2019/02/gigi-hadid-faces-another-copyright.html> accessed 25 March 2019.
[26]Other similar cases have involved Khloe Kardashian and Odell Beckham Jr. See ‘Gigi Hadid Is Being Sued – Again – For Posting a Copyright-Protected Image of Herself on Instagram’ (2019) <http://www.thefashionlaw.com/home/gigi-hadid-is-being-sued-again-for-posting-copyright-protected-image-of-herself-on-her-instagram-account> accessed 14 February 2019.MICHAEL ZHANG, ‘Khloe Kardashian Sued for Posting Copyrighted Photo of Herself on Instagram’ (2017) <https://petapixel.com/2017/04/28/khloe-kardashian-sued-posting-copyrighted-photo-instagram/> accessed 25 March 2019.
[27]Ashley Carman, ‘Kim Kardashian West Sues Fashion Company That Keeps Tagging Her on Instagram’ (2019) <https://www.theverge.com/platform/amp/2019/2/22/18236007/kim-kardashian-west-missguided-lawsuit-claims-fast-fashion-instagram> accessed 19 March 2019.
[28]For the exploitation of social networks in order to sell counterfeit products see Dennis Collopy, Peter Jenner and Chris Carey, ‘Share and Share Alike. The Challenges from Social Media for Intellectual Property Rights’ (2017).
[29]However, it must be remembered that Italian jurisprudential orientation that underlines how the commercial exploitation of a photograph by the photographer is subject to the consent of the subject portrayed. In particular see Trib. Roma, 18 May 2011; Trib. Modena, Ord. 11 August 1998; Cass. civ. 19 November 2008, 27506; Trib. Milano, 28 April 2007. In UK the subject requires the analysis of the rules on misleading advertising, passing off and unfair commercial practices.
[30]‘according to whether the link connects to the homepage of the linked website or rather, skipping the homepage, directs the user straight to a secondary page within the website’. See Emanuela Arezzo, ‘Hyperlinks and Making Available Right in the European Union-What Future for the Internet After Svensson?’ (2014) 45 IIC 524.
[31]As it was argued the activity to download a content in order to share it in a different platform would constitute an act of communication to the public which would make it impossible for the author of the content to remove it. See Paolina Testa, ‘Il Parere Del Professionista – Ripresa Di Fotografie Già Pubblicate Su Altro Sito Internet e Linking’ (2018) 5 Dir. Industriale 480.
[32]On the lawfulness of the publication on Facebook of links to videos hosted on YouTube see the recent Italian case law Tribunale di Roma, 15 February 2019 n. 3512
[33]With regard to the current issues of data protection of social network users in the light of the GDPR see Simone Bonavita and Roberto Pardolesi, ‘GDPR e Diritto Alla Cancellazione (Oblio)’ (2018) 3 Danno e Responsabilità 269.Otherwise, for an analysis of the different responsibilities that Social Network service might face in the light of Italian civil law, see Falletti (n 2).
[34]In this light see Great Britain and others, Online Harms White Paper(2019) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793360/Online_Harms_White_Paper.pdf> accessed 7 May 2019.Guido Noto La Diega and others, ‘The Internet: To Regulate or Not Regulate?’ (Social Science Research Network 2018) SSRN Scholarly Paper ID 3207654 <https://papers.ssrn.com/abstract=3207654> accessed 7 May 2019.
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Tribunale di Torino, 13 giugno 2017 n 3115
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