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Some of you Instagrammers out there may have noticed a trend where big media companies take pics from the service and use them as centerpieces for a story – all without attribution. Naturally, this didn’t sit well with one guy who took his case all the way to court.
And the verdict is in: Companies can’t just appropriate your Instagram pics, or otherwise, just because they feel like doing it.
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The photo in question involves a picture of US President Donald Trump delivering an impromptu appearance at a wedding at Trump National Golf Club. The photographer who took the picture, Vice President of Deutsche Bank Jonathan Otto, noticed that TMZ later used his pic and didn’t give him credit for taking it.
Somehow the picture he took made its way to the bride’s family which then posted it on the social media website and it went viral from there, with gossip site TMZ picking up the photo and running with it as the headline image.
Otto sent TMZ a Twitter inquiry about the photo but apparently didn’t receive a response (or a satisfactory one) because he then hired a lawyer and filed lawsuits for copyright infringement against Hearst Publications and Esquire magazine, among others.
According to PetaPixel, Judge Woods wrote in his decision in the case: “Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose — regardless of whether that photograph was created for commercial or personal use…It would be antithetical to the purposes of copyright protection to allow media companies to steal personal images and benefit from the fair use defense by simply inserting the photo in an article which only recites factual information — much of which can be gleaned from the photograph itself. If so, amateur photographers would be discouraged from creating works and there would be no incentive for publishers to create their own content to illustrate articles: why pay to create or license photographs if all personal images posted on social media are free grist for use by media companies, as Hearst argues here?”
As the judge and PetaPixel both highlight, there is a market for the photo given how it went viral. That would mean that Otto is probably owed a little something for taking it. Hearst had moved for what is called a summary judgment – basically a quick dismissal of the complaint – but the judge’s ruling means that it will now proceed to a jury trial which will reward damages if they determine it is warranted.