Copyright

YOU'VE GONE VIRAL

HOW IT HAPPENS

So let’s say you took a photo of your kid looking disgusted at some broccoli. You think it’s funny so you post it to Facebook and get a reasonable number of likes from your friends. A few days pass. Then suddenly, you get several thousand likes. People you’ve never heard of start commenting. Captions are made for the photo. It starts showing up on Twitter, then Instagram. Before you know it, your kid and his broccoli have a page on knowyourmeme.com . Your photograph has gone viral - it’s become a meme. Mainstream news agencies (always the last on the scene) even begin reporting on the new meme, and your kid pops up on the 10’o’clock news.

WHAT CAN YOU DO?

You don’t want your child’s face plastered across the internet as visual shorthand for disgust. But the picture has been shared so many times, by so many people, across so many platforms. How could you possibly get every one of them taken down?

The short answer is that you can’t. Information, to quote the title of a Cory Doctorow book, wants to be free. Once any discrete bunch of data - including a photograph - is out there, there’s no pulling it back. This is one of the Rules of the Internet.

IT MAY BE FAIR USE

Furthermore, copyright law helps to enforce this particular Rule with a concept called fair use. Fair use is intended to make sure that artists and other creators are allowed to use otherwise copyrighted works as inspiration or material for their own works. Anyone can use your photo so long as they use it fairly. There are a number of fuzzy determinations that a court makes to determine what use of a copyrighted photo is fair, but in general if someone uses your photo in a way that a) doesn’t make them money, and b) genuinely transforms or significantly alters the basic message of the photo, then that use is fair. This means that most of the people sharing your kid’s meme are using the photo fairly. They aren’t trying to make money; they’re just sharing a meme. And they’ve significantly transformed the message behind the photo - when you posted it, it was meant as a picture of your child. When others post it, it’s meant as a statement about their own thoughts or reactions. This is especially true if they have captioned the photo. What’s more, your local news station is probably within its rights to publish the meme, because they are reporting it as news, and “newsworthy” items and images of “public interest” are always strong exceptions to copyright law and fall under the umbrella of fair use.

IS IT BEING USED FOR PROFIT?

However, you’re not totally out of options. Remember that using a photo fairly depends largely on whether you make money from it, and so anybody who uses your photo for profit is somebody you can sue. You probably can’t come after people who just post on their social media profiles, but you can come after anybody selling merchandise or copies of the meme in nearly any sense; you could potentially sue a website for posting the meme if they make significant profits from advertising, and at the very least you can send any website hosting the photo a DMCA takedown notice, telling them that you own the copyright and demanding they take it down.

You might wonder if you could at least get people to give you credit for taking the photo, even if you can’t make them take it down. The answer is less useful than you would think. If someone is improperly using your copyrighted photo, then of course you can demand they give you credit - but you could also demand they take it down altogether. However, if anyone is using your photo in a way that’s fair, then you can’t demand they do anything - copyright law doesn’t require that you give a copyright owner credit. (If, however, your viral image is a painting, sculpture, or a few other kinds of fine art, then you may have rights under the Visual Artists Rights Act to force people who display the image to give you proper credit.)

COPYRIGHT MAY NOT BE YOUR ONLY OPTION

But copyright law is not your only option. Depending on which state you live in, you may have state privacy laws that you can take advantage of; posting pictures of your minor child is arguably an invasion of your child’s privacy. Your success with this path may also depend on people’s commercial use, so beware: using a person’s image for advertising or promotion without their permission is probably unlawful, but just sharing a person’s image for fun, or even selling it as a work of art, is probably fine.

If something like this has happened to you, don’t be afraid to consult an attorney to explore your options, and don’t hesitate to encourage your attorney to be creative.

Originally published on November 16, 2017 in Rangefinder Magazine

YOUR RIGHTS AND RISKS AS A STREET PHOTOGRAPHER

While street photography, even when displayed or sold, may in some cases be considered protected speech under the First Amendment of the United States Constitution, that alone does not prevent an aggrieved person from filing a lawsuit in the first place.  Moreover, any fight in court involves some level of uncertainty and comes at a cost.  Because it isn’t always possible to avoid legal trouble, photographers can benefit from becoming aware of the risks associated with street photography.

NICE DANCE MOVES - CAN THEY BE COPYRIGHTED?

 Let’s say that you are a famous rapper. You’re known not only for your music, but also for the dance moves that you popularize in your music videos. One in particular has gone viral - it’s a distinctive series of kicks and arm wiggles that you call the Billy Stone. You state the dance move’s name every time you do it - “Do the Billy Stone,” you say. You make a little money and take some time to enjoy your success: relax, hang out with your friends, play video games.

 Let’s say you’re playing a particular online multiplayer roleplaying game. In this game, you build a character and use them to fight against other players. The game itself is free, but you can spend real money to buy cool upgrades for your character - new costumes, unusual weapons, and… dance moves. You scroll through the available dance moves you can buy for your character and lo, you see the Billy Stone. The game calls it the “Zilly Pebble” and charges five dollars for it.

 You are pissed. You never gave anyone permission to use the Billy Stone, and you know that this game has made almost two billion dollars from in-game purchases in the last year. You call your lawyers. Do you have a case?

Maybe. It is possible that you could claim a copyright over this dance move, but you have several hurdles that will slow you down. The first is a copyright principle called fixation - in order for any creative work to be protectable by copyright, it must be fixed in a tangible medium, and no dance move is fixed on its own. Dances - or, as the Copyright Office calls them, “choreographic works” - can be fixed in two ways: they can be written down in choreographic notation, or they can be recorded as a video or a series of images. You’ve got this hurdle covered - your music videos contain plenty of instances of you performing the Billy Stone. But the next hurdle may throw you.

In order for a work to be copyrightable, it must also be minimally creative; that is, long and complex enough to warrant copyright protection. The Billy Stone may not be able to pass this hurdle, because it’s just a short series of moves intended to be performed by anyone, rather than a complex arrangement intended to be performed by a professional. The Copyright Office specifically excludes this type of dance from copyright protection: “Registrable choreographic works are typically intended to be executed by skilled performers before an audience. By contrast, uncopyrightable social dances are generally intended to be performed by members of the public for the enjoyment of the dancers themselves."[1] The Billy Stone is simply too short and too casual to be eligible for copyright protection, and even though you may hold copyrights over your music videos and the depictions of the Billy Stone therein, those copyrights cannot prevent other people from performing the Billy Stone. You can prevent others from copying the videos themselves, or any portion of the videos, but you can’t stop someone from acting out the dance within the video.

But that doesn’t mean you don’t have a case, and your lawyers may need to get creative. You may not be able to copyright the Billy Stone, but that doesn’t mean you can’t trademark it. A trademark is defined by the Lanham Act as any “word, name, symbol, device, or any combination thereof” that is used in commerce to distinguish goods from other, similar goods and identify the source of those goods. Almost anything can be a trademark, so long as it is used to identify and distinguish a product - ad jingles and short tunes, phrases, even colors and smells have all been trademarked. You could make an argument that the Billy Stone is distinctive among your consumer base and identifies a song or creative work as something that came from you, and the fact that you call this dance move by name every time you perform it - “Do the Billy Stone” - gives this argument weight. You could then argue that the video game’s knockoff version of your dance - the Zilly Pebble - is confusingly similar to the Billy Stone, and likely to create a presumption among consumers that you are affiliated with or endorse this video game.

Trademarks and copyrights are a little different in how they are enforced, and this difference will be helpful to your strategy. If something is copyrighted, no one else can copy it at all, regardless of whether they profit from their copying.[2] But if something is trademarked, you can only prevent others from copying it for a commercial purpose. This means that your fans, people at your concerts, and randos on Instagram can all do the Billy Stone without worry of legal ramifications, but the minute some video game developer starts charging five dollars to purchase it online, your mark has been infringed. This is notable because the Copyright Office’s justification for refusing copyright status to short “social” dance moves is that to do so would stifle creativity - reframing the Billy Stone as a trademark would only stifle creativity among corporate, profit-driven entities, while allowing fans and civilians to show their appreciation.

There’s no guarantee that such an argument would work, but when it comes to difficult disputes like this one, legal creativity can pay off. If you have an unusual problem, talk to a lawyer who isn’t afraid to get creative.

[1] https://www.copyright.gov/circs/circ52.pdf

[2] With some exceptions, see 17 U.S.C. § 107.