photokina: 26.–29.09.2018 08.–11.05.2019

#photokina

Social Media and image rights

Risky sharing

Risky sharing

Platforms like Pinterest & Co. make the distribution of images easy. However, those who make use of photos created by others in social networks are on thin ice in legal terms. What users should consider. Sharing, liking, tweeting, pinning: social networks invite people to further distribute content found in the Internet, and Germans do this with great zeal. The market leader Facebook has 31 million users here in Germany who have a look at least once a month. 1.8 million users active on a weekly basis have been counted by the Short Message Service Twitter. And Pinterest, the platform specialising in image collections, has an estimated four-million monthly users. The networks have become nealy indispensable as sources of inspiration and as a possibility to keep in contact with friends and acquaintances. However, usage can mean legal pitfalls, especially with regard to image rights: photos from others can quickly turn up in your own posts on the digital pin board. This can in certain cases involve a copyright infringement, and even claims to compensation for damages.

Outdated copyright laws

The main problem: copyright law for the most part originates from a time in which social networks didn't yet exist. Accordingly, there are many aspects now being discussed by jurists that aren't explicitly reflected in laws. And judgements that could provide orientation are still rare. "The author has (…) the exclusive right to publicly reproduce his work in immaterial form", is the literal translation of the legislation. This means conversely: those who wish to further distribute a photo created by someone else, irrespective of the channel used, principally require the consent of the holder of the rights. An individual agreement is not principally necessary for this purpose. A so-called Creative Commons license often precisely defines whether and under what circumstances the online content may be further distributed.

Be careful with the thumbnails

So far, so clear. However, in practice in social networks it's usually not at all about publishing photos by third parties at full resolution again. Behind the pin walls of Pinterest, for example, is actually a collection of links which lead respectively to the digital source location. At Facebook and Twitter too, users frequently link to news articles, blog entries and other websites.

In order that links appear more attractive, the networks automatically generate small so-called thumbnails. The juristic matter of dispute is whether this is already public reproduction as defined by copyright law.

This question can't currently be clearly answered. However, the Federal Court of Justice has at least reached a judgment in a similar matter. The judges in Karlsruhe in several cases classified the displaying of thumbnail images in Google's image search as permissible. According to the estimation of many jurists the judgment can also be applied to social media.

Recommendation buttons make the decision easier

Nonetheless: those who want to be absolutely certain should remove the thumbnail prior to publication. This applies especially when the user copies the link himself from the address bar of his Internet browser. This is pointed out by Carsten Ulbricht, attorney and partner with the law firm Bartsch Rechtsanwälte in Stuttgart, in social media guidelines.

Less risk is involved in using thumbnail images, in the opinion of Ulbricht and many of his colleagues, when websites include recommendation buttons from Pinterest and Facebook, etc. The site operator would in this case already have provided at least conditional consent in some cases, and should also have acquired the corresponding usage rights from photographers or an agency. This can be presumed, for example, with news sites.

Platforms deflect responsibility

Warnings have in fact been issued very seldom to date. However, unpleasant surprises are possible: the owner of a driving school, for example, was warned after clicking the Facebook "Share" button of a "Bild.de" article on the football player Marco Reus. The photograph saw his copyright breached because he wasn't named, the Cologne law firm Wilde Beuger Solmecke reported some three years ago.

The case also demonstrates the weaknesses of the social networks: thumbnail images cannot be removed, for example, with Facebook's "Share" button, and the insertion of image documentation is not provided for. The platforms often deflect their responsibility in the fine print: users must pledge to observe copyright laws with registration.

Related information:

The portal iRights.info explains the role played by copyright and personal rights in social networks.

Heise.de analyses whether the Google image search is permissible , and what questions arise for users with shae functions.