Are Snap’s new AR features encouraging tourists to do something that might be illegal? I think so, but can’t be sure. What I am sure of though, is that museums and cultural institutions should be aware of Snapchat’s new feature.
WHAT IS IT?
On April 4, Snap shared their newest augmented reality “Lenses”, which enable users to “transform the world’s most iconic landmarks in real-time.” The starting five are:
- Eiffel Tower, Paris
- Buckingham Palace, London
- Chinese Theater, Los Angeles
- Capitol Building, Washington DC
- Flatiron Building, New York City
Using animated GIFs launched within the Snapchat app, these places perform various actions from puking rainbows to shooting lightning or transforming into a slice of pizza. Lenses aren’t new: the 400,000 Lenses made with Lens Studio since 2017 have both created a burgeoning community of AR creators and a generation of users very comfortable with augmented reality. And with Snap claiming to reach nearly 75% of all 13-34 year olds, this isn’t something that we should ignore.
While I’m a huge proponent of meeting visitors where they are and highly encourage museums to use all parts of the internet, Snap’s use of real cultural sites raises questions, and their press event didn’t provide answers. The biggest questions are if Snap’s users can legally photograph (snap?) famous sites and what the implications are from there, namely what will happen if Snap decides your museum will be one of their next locations.
To provide some context, in attraction marketing, it’s common knowledge that photos of the Eiffel Tower at night violate French law if the photographer hasn’t been given permission by the landmark itself. In short, while images of the Tower became public domain in 1993 (France uses copyright holder’s life plus 70 years), the lighting that appears at night was installed in 1985 and is a separate artistic installation. Their website explains,
“The various illuminations of the Eiffel Tower (golden illumination, twinkling, beacon and events lighting) are protected. The use of the image of the Eiffel Tower at night is therefore subject to prior authorisation by the SETE. This use is subject to payment of rights, the amount of which is determined by the intended use, the media plan, etc. Views of the Eiffel Tower taken by private individuals for private use do not require prior agreement. However, professionals must contact our teams, who will inform them of the conditions of use governing images.”
While some deep Google searching doesn’t reveal any individuals who have been sued for photographing the Eiffel Tower, a plethora of sources confirm that it would be within the rights of the Société d’Exploitation de la Tour Eiffel to do so if the image was being used commercially, because social media is a form of publishing. With personal brands and influencers blurring the line of individual and commercial entity and sponsored posts making thousands of dollars, it might only be a matter of time before someone is sued and the case goes to court.
For the purposes of this post, I’ll be focusing on the Eiffel Tower but these concerns can exist at other sites as well. The Eiffel Tower is absolutely not the only place with similar restrictions. Adobe had put together a helpful resource “designed to inform and educate our contributors about common subjects whose image may not be acceptable due to intellectual property, privacy, and/or private property rights.” On this list are whole sections dedicated to historical and cultural organizations around the world – museums included.
These concerns aren’t new. So what makes Snap’s Landmarkers any different than thousands of Instagram posts of the Eiffel Tower twinkling against a night sky? To me, it is the fact that Snap has essentially directed its users to photograph specific sites (unlike Instagram, which leaves subject matter to the user) that are known to be questionably legal.
THAT EU COPYRIGHT DIRECTIVE, AGAIN.
Copyright law used to have “safe harbor” provisions which meant that Web platforms with uploaded content were not liable for copyright infringement of their users, but did have to remove content if a complaint was made. This would have meant that Snap wasn’t liable for copyright infringement uploaded by their users. Then came the EU Copyright Directive and “article 13” (a renumbering now actually makes this article 17, though it’s still commonly called 13). This eliminated safe harbor and makes the platforms liable for content found on their sites. So now, Snap will be liable for copyright infringement done by their users.
Unless, Snap, on behalf of its users, secured a license for the landmark content and the corresponding art installations (i.e., the lights) therefore, making users no longer directly responsible for the images uploaded. This would be found in terms of service. But, this were to be done, then the platform would be legally responsible for content, which seems like a general liability for the platforms.
THE TERMS OF SERVICE
So, of course, I checked Snap’s Terms of Service for the US and outside of the US (which appear to be nearly identical in the excerpts below). (Obligatory reminder that this post is meant to encourage cultural institutions to consult an actual intellectual property lawyer.)
Section 4 “The Content of Others” states:
“Much of the content on our Services is produced by users, publishers, and other third parties. Whether that content is posted publicly or sent privately, the content is the sole responsibility of the person or organization that submitted it. Although [Snap Inc.] reserves the right to review or remove all content that appears on the Services, we do not necessarily review all of it. So we cannot—and do not—take responsibility for any content that others provide through the Services.”
Section 6, “Respecting Other People’s Rights” states:
“[Snap Inc.] respects the rights of others. And so should you. You therefore may not use the Services, or enable anyone else to use the Services, in a manner that… violates or infringes someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual-property right.”
Section 7, “Respecting Copyright” states:
“[Snap Inc.] honors copyright laws, including the Digital Millennium Copyright Act. We therefore take reasonable steps to expeditiously remove from our Services any infringing material that we become aware of. And if Snap Inc. becomes aware that one of its users has repeatedly infringed copyrights, we will take reasonable steps within our power to terminate the user’s account.”
Back to Landmarkers specifically, this begs the question of what partnerships and have been made with the cultural sites, if at all, thus far? Did the Landmarks in Europe, where the EU copyright directive applies, give permission to be Landmarkers? For the first five, did Snap ask for the site’s approval thereby making any photo taken within the platform legal? Does that mean that images taken in one platform and imported into Snapchat are treated the same or differently? I can’t imagine that Snap doesn’t know about the Eiffel-Tower-at-Night situation, so what have they negotiated that has not yet been made public?
Going forward, will future landmarks, on either continent, be asked for permission? What if an institution wants to continue to limit photographs of the outside of the building? And when a museum does partner with Snap, what will the expectation be in regards to providing image rights? Or will the individual creators in Lense Studio (the internal Lense system) be responsible for negotiating permission with the cultural institutions?
EXCEPTIONS TO THE EU COPYRIGHT DIRECTIVE
The EU copyright directive does have some exceptions, but it’s difficult to predict how they align with Snap’s Landmarkers and again, there has been no mention of what has already been negotiated between the platform and current or future Landmarkers locations.
- Memes and GIFs are specifically excluded, which seems to mean that the technology behind Landmarkers (GIFs) make them safe for Snap to host and for users to create … but a closer read of the directive reveals that this is “for the purposes of quotation, criticism, review, caricature, parody or pastiche.” Are the Landmarker users making the funny images for those purposes? Will institutions be consulted prior to their site becoming a Landmarker location and will they want their site specifically and under the law be used for the purpose of caricature or parody?
- Copyrighted material is allowed if it preserves cultural heritage. Is bringing silly animations to one of the most famous places in the world “preserving” it? Can a GIF both turn something into pastiche while preserving it? Who would be deciding who was doing the preservation? Can Snap say that they are doing preservation work that is not sanctioned by the landmark itself? Or, if the landmark is consulted, are they approving that Snap is doing preservation work on their behalf?
Additionally, the longstanding tradition of “freedom of panorama” allows for cityscapes and the like to include something copyrighted as long as that is not the sole focus of the image. But, here Landmarkers become even more curious. The description of how to use Snap’s Landmarkers explains that when users tap and hold the camera, they’ll start to scan their surroundings. Is this movement and “scanning” a panorama? Had the user just been told to pause and focus on the landmark itself, would that have negated the freedom to pan?
Snap says that creators will be able to bring more landmarks to life soon and that the company will be reviewing them. While I would like to think that this review would cover appropriateness in addition to quality assurance, there is no public information affirming that. These creators will also be able have Creative Profiles and Lens Studio will have AR templates, which does the most complex development for the creators. That means that more people will be able to create Lenses and to commercialize their creations. Which, if not protected by the GIF and meme protection, the preservation protection, or the panorama protection, would mean these creators have created assets from which they can benefit (this goes beyond influencer and personal brand, if it is demonstrating marketable technological knowhow). Returning to that quote from the Eiffel Tower website, “professionals must contact our teams, who will inform them of the conditions of use governing images”, it seems that they may have to reevaluate how they are defining professional.
These concerns aren’t something that can or should be ignored. Snap claims “Lenses for Landmarkers will be hand-picked by Snap employees to prevent abuse” but I haven’t been able to discern what constitutes as abuse. And I sure can’t figure out who agreed to what or who is liable for photographs of the Eiffel Tower at night. Maybe they’ll politely ask people to only snap in daylight?
None of these questions should stop a cultural institution from using Snap or any other form of social media. But understanding this should help these landmarks achieve success.
Are you a lawyer? Do you work at one of the five Landmarker sites? Comment below or send me a tweet!