By Oliver Herzfeld and Marc Aaron Melzer
Almost everyone knows that it is a violation of law to copy other people’s works of authorship without the owner’s permission or a valid fair use exemption. But the number of social network users has exploded (estimated to exceed two billion people worldwide) and, at its core, social media is all about sharing content. So the question arises, to what extent has the evolution of social media expanded the permissibility of posting content created by third parties beyond the traditional limits of fair use? This article will review several recent fair use cases and identify key takeaways and lessons learned.
What Is Fair Use?
The Copyright Act codifies the judicially created “fair use” doctrine. Courts have long recognized the need for such a defense because not every act that might violate an owner’s copyrights should amount to an infringement. The fair use defense was created to limit the scope of copyright through an equitable rule of reason. The statute provides, in relevant part, that “the fair use of a copyrighted work, including such use by reproduction in copies…, for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research” is not considered an infringement. Fair use is not, however, limited to the listed purposes. Rather, courts examine the facts of each particular case and weigh and balance the following four factors to determine whether the particular challenged activities constitute fair use or infringement:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
No one factor is dispositive. Instead, each factor is analyzed individually and then balanced with the others. Nonetheless, the Supreme Court has held that the fourth factor, the effect upon the potential market, is the single most important one. The Supreme Court has also held that, under the first factor, “the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is ‘transformative,’ altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Creator: nyphotographic.com; License: CC BY-SA 3.0
There Is No Blanket Right To Copy Others’ Works, Even If Properly Attributed
Daniel Morel took photographs of the 2010 earthquake in Haiti that Agence France Presse obtained from the Twitter feed of a third party and distributed without Morel’s permission. AFP brought a suit seeking a ruling that it had not violated Morel’s copyrights claiming AFP should be protected by Twitter’s terms of service which allow Twitter “to make your Tweets available to the rest of the world and to let others do the same.” AFP, however, underestimated the importance of the next sentence: “But what’s yours is yours – you own your content.” Morel countersued for copyright infringement. The court ruled in Morel’s favor, holding that Twitter’s terms of service do not permit third-parties to remove content from Twitter to post elsewhere. A jury found the infringement to be willful, awarding Morel $1.2 million in statutory damages, the maximum possible statutory award.
We can draw a number of lessons from this case. The first was articulated by one of AFP’s staff members and included in the judge’s decision: “it is very difficult to know to whom the photos belong, that’s one of the risks of twitter but we are going to be vigilant so that we find the right bylines.” That sentiment is certainly correct, but it doesn’t go far enough. Attribution does not exculpate unauthorized copying. There is no blanket right to copy and distribute others’ content, even if it is properly attributed. At the same time, though, “news reporting” is one of the identified purposes in the fair use statute. It is critical to remember that the identified purposes are just the starting point of the analysis - a glimpse into the minds of the drafters - and the four-factor analysis is the true test, with its judicially developed clarifications. AFP did not make a fair use argument - perhaps concerned that, as a content owner, it would hurt AFP in the long term - but it’s hard to see how a fair use analysis could favor AFP since its use was commercial, used the entire work, and had a clearly deleterious effect on the potential market for the work.
Using Someone Else’s Copyrighted Image In Your Online Conversation Is Not Necessarily Transformative
The boundaries of “transformative use” were tested in recent litigation between the North Jersey Media Group and Fox News. NJMG owns the famous photograph of firemen raising a flag above Ground Zero in the hours after the September 11, 2001 attacks. On the 12th anniversary of the attacks, a Fox show, Justice with Judge Jeanine, posted a slightly altered version of the photograph to Facebook. NJMG sued and Fox sought a ruling that its reproduction of the photograph, alongside the 1945 Iwo Jima flag raising, with the caption “#NeverForget,” was fair use because it conveyed a message. The court refused, intending to send that question to the jury. The parties ultimately settled, depriving us of a precedential court opinion on the question of fair use in this context. Nonetheless, the court found that Fox’s alteration of the content and message of the photograph was “minimal,” and did not constitute an original idea. To the extent Fox’s use of the image could be considered commentary, the judge held that it “merely amounted to exclaiming ‘Me too.’”
In holding that Fox’s use had at least the potential to damage NJMG’s market for the work (the fourth fair use factor), which primarily involved licensing the photograph for much the same type of use as Fox’s Facebook post, the judge quoted the Supreme Court’s holding that this factor was “undoubtedly the single most important element of fair use.”
Unlike the situation above with Morel’s photos, Fox knew who owned the photograph and that it was routinely licensed and its use controlled. This also was not a “hot news” story in need of illustrative imagery. The court’s denial of Fox’s fair use defense provides useful guidance to others who might copy another’s image and think that they are being “transformative” by posting it to social media with some discussion. That the commentary accompanying the post was not about the copyrighted material is another important consideration, which the judge did not specifically identify. Had the Facebook post discussed the photograph itself, or if it was directly related to the content, then the analysis might have looked different. But the strongest takeaway from this case is that merely posting a copyrighted work to social media as part of a conversation is not “transformative” enough for fair use protection.
Source: Open Icon Library. Creating User: ZyMOS
Adding “Comments” To Appropriated Art May Constitute Transformative Fair Use
Richard Prince is a well-known, some would say notorious, “appropriation artist” who makes changes to other’s works, claiming that the new work is distinct and protected by fair use. Prince was sued by photographer Patrick Cariou in what has become a seminal fair use case. That case did not involve social media, but Prince’s recent project titled “New Portraits” is the inverse of the cases discussed above. For “New Portraits,” Prince took photographs from Instagram without permission and turned them into gallery pieces by enlarging them and adding an Instagram-style frame with new captions/comments, as you might find on Instagram. Prince displayed these works at the Gagosian Gallery in New York and sold them for upwards of $100,000.
One of the photographers whose work Prince appropriated, Donald Graham, sued for copyright infringement in late 2015. Similar to the Morel case, Graham’s photo had been posted to Instagram by a third party without authorization and Prince took it from that post. The case is ongoing, with a pending motion to dismiss that relies heavily on the Second Circuit’s decision in Cariou, so it seems likely that the Second Circuit may get to opine again on fair use and “appropriation art,” which could have broader impact on how fair use is seen in the social media context. As in the Fox News case, the court in Graham v. Prince may discuss the value of social media comments in a fair use analysis, since Prince argues that his addition of “comments” supports a finding that his “New Portraits” exhibition constitutes transformative fair use.
What Does It All Mean?
Since there are few final rulings in social media-related fair use cases, there are fewer answers than we might like. But both the case law and trends are clear that copyright is very much alive online and that stating “it’s just Facebook/Twitter/Instagram” is not a legal defense to infringement. Media organizations should be especially wary of using content they cannot confidently source and license. Editors and production staff should seek permission from social media users who post photos and video of developing news events, even if just by way of communicating with them through the social media platform itself. If you would normally seek out permission to use content in the offline world, you should do so when posting another’s content to social media. And, when you are having trouble figuring out how best to protect your organization, engage competent legal counsel to provide proper advice and guidance.
Oliver Herzfeld is the Chief Legal Officer at Beanstalk, a leading global brand extension agency and part of the Diversified Agency Services division of Omnicom Group.
Marc Aaron Melzer is Counsel at the law firm of Hoguet Newman Regal & Kenney, LLP, and practices all types of intellectual property law and information technology law, along with complex commercial litigation.
