Today, Taylor Swift, singer/songwriter/American citizen, appeared for jury duty in Nashville. Or, in the words of The Huffington Post:

Taylor Swift Showed Up To Jury Duty Like A Normal Human Being

 

A woman named Tracy Bates, who Tweets as @TracysActivism, also appeared in the Nashville jury pool. Bates posted several Swiftian updates to Twitter, including some photos (according to Bates, Swift consented to the photos.) She even got an autograph.

The Huffington Post, like many other news outlets, re-posted Bates’ updates and photos. Bates then posted the following update:

I DO NOT CONSENT FOR ANY MEDIA ENTITY TO USE MY PHOTOS. THEY ARE NOT FOR SALE EITHER.

— Tracy’s Activism (@TracysActivism) August 29, 2016

Is it OK for The Huffington Post to share the images? Let’s walk through this step by step.

1. Tracy Bates Owns the Copyright in the Photos

In the U.S., the default is that the photographer owns the copyright in a photo that she took. It doesn’t matter if that photo was taken with a $10,000 camera at a National Park or if it was taken with a smartphone in a Nashville jury room. So Bates is the copyright owner. And she doesn’t have to file anything. Copyright vests in the owner immediately when the photo is taken.

“Copyright” actually confers several exclusive rights onto the owner, including the right to make copies of the original work. This includes digital copies. So, at the moment the photos were taken, Bates had the exclusive right to make copies of the photo or to allow any other person or entity to do so.

(Let’s set questions of fair use aside for the purpose of this blog post, in order to keep it to a reasonable length.)

2. What About Taylor Swift? Doesn’t She Have a Right to Those Photos?

In some circumstances, she might have a right to privacy, which means she could prevent the photos from being shared. That probably wouldn’t apply in a public setting, such as a courthouse (probably the most public of all settings.) But in any case, Swift, as the subject of the photos, doesn’t own the copyright. That would only happen if she had hired Bates to take the photos (as part of a work for hire agreement) or had purchased the copyrights from Bates.

3. When Bates Posted the Photos to Twitter, She Granted a Limited License to Twitter to Use the Photos

Bates didn’t have to post the photos to Twitter. She chose to do so. By doing so, she implicitly agreed to Twitter’s Terms of Service. The key points are in Section 5 of the Twitter TOS, entitled “Your Rights.” Here are some relevant excerpts:

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

…

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

…

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

…

You understand that your Content may be syndicated, broadcast, distributed, or published by our partners…

Note: This does not mean that just because an image was posted to Twitter, anyone can use it however they like, even if the photo is newsworthy. In a 2013 case, which I wrote about in this blog post, a Federal judge ruled that news agencies can’t use photos of the Haitian earthquake, which the photographer posted on Twitter, without permission.

However, Twitter gives essentially anyone the right to republish Tweets through its “embed” feature. Click here to read their info on embedding Tweets.

By copying the embed code from a Tweet into a web page (like, say, a Huffington Post article,) you can effectively copy any photo that was part of a public Tweet. There’s a twist, though – from Twitter’s embed guidelines:

What if a user deletes a Tweet after it has been embedded on another website? Similarly, what happens to Tweets from users that change their Tweets from public to protected (or become suspended)?
Text content of the Tweet will be visible. Media will not be loaded…

4. But Now the Photos Are Down – License Revoked

As of this writing, Bates has deleted the photo Tweets from her Twitter timeline. This removes the mechanism whereby The Huffington Post and others could display the photos. So if you missed them, sorry. I can report that they looked like images of a twentysomething blonde woman sitting in a jury room. The rest is up to your imagination.

I’m sure the images were copied and can be easily found elsewhere online. But without Bates’ permission, all of those copies are infringing (again, fair use aside.)

So, to summarize: Tracy Bates owns the photos she took. She posted them to Twitter, which gave the rest of us a temporary license to re-post them within embedded Tweets. But by deleting her Tweets, that license was revoked. Bates can destroy the images, share them, copy them, sell or license them, or do with them as she wishes.

Or, in Bates’ own words: “I own the copyright to any photo I take, and you know that. They are down now, so toodles.”