Most images on the internet get passed around about a half-dozen times before they end up on our screens, so when we hear that copyright can be a challenging issue in the age of social media, it’s fair to say that the case is being understated. How exactly to fix it is a big question for far smarter people, but there does remain the issue of how it’s addressed in the here and now, which is to say somewhat haphazardly.
From Darren Heitner at Above the Law comes a story about a copyright suit and fair use, frequent bedfellows when it comes to litigation over content on the internet. Photographer Michael Barrett Boesen is taking on LongIslandTennisMagazine.com over the website’s use of a photograph of now-retired tennis star Caroline Wozniacki. And while it does seem to be the case that the photograph in question is on the site, the case is of course not nearly so simple.
For a start, LongIslandTennisMagazine.com is a news gathering and reporting site for the world of tennis at large (and not strictly confined to tennis played on Long Island, as the name might suggest) and as such has certain rights with fair use when it comes to informing its readers, in this case with a story on Wozniacki’s retirement. Heitner also points out that the filing indicates Boesen filed for a copyright in late 2019, years after the photograph was taken and only after the photograph was posted to the website.
Complicating the case further is the fact that the website didn’t post the photo per se, but rather embedded Wozniacki’s Instagram post in which the photo was used in announcing her retirement. Given how much is said and posted on social media, the embedded tweet or post is a frequent feature of reporting, and given that the embed features on social media make clear where the work originated from, there’s little question as to the right of reporters to use them.
Boesen’s contention, then, would have to be that the website knowingly used a post that feature an image in violation of someone else’s copyright, which is a difficult assertion to somehow prove. Heitner rightly points out that Boesen’s fight should be with Wozniacki if anyone, and he as yet has not taken up a case against her. It’s perhaps understandable that a photographer would feel aggrieve and under threat during a period in which attribution and licensing is too often forgotten or simply ignored (at least by non-journalists), but it’s hard to see how a seemingly ill-considered case is going to put that genie back in its bottle.