Given the constant need for content and eye-catching visuals, it would be nearly impossible for social media practitioners and users to create every bit of content from scratch. However, one should use caution when appropriating others’ works – whether visual or written– when selecting what to post to social media.
Copyright infringement carries steep penalties and fines, up to $150,000 per use if the infringement was intentional.
What About ‘Fair Use’?
The Copyright Act recognizes the “fair use” doctrine. This doctrine was created to limit the scope of copyright by application of a countervailing rule of reason. The statute provides, in relevant part, that “the fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research” is not considered copyright infringement.
Fair use is not limited to the purposes expressly listed in the Act. Courts examine the facts of each particular case and balance the following four factors to determine whether the particular challenged activities constitute fair use or infringement:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
One of the difficulties in determining whether use of another’s copyrighted work constitutes fair use is that Courts weigh these factors in light of the equities in a specific case, so there is no “bright-line” test to ensure that a use is non-infringing.
To complicate things further, courts analyze the first factor in light of how “transformative” the use is – that is, whether it alters the original sufficiently to be a new expression. For instance, Fox News recently settled a lawsuit over its use of the iconic photograph of firefighters raising the American flag amidst the rubble of the 9/11 attacks. Fox argued that its use of the photo on the Facebook page of one of its show hosts, juxtaposed with the famous World War II photo of Marines raising the flag over Iwo Jima, and bearing the hashtag #NeverForget, was sufficiently transformative to constitute a fair use. The judge disagreed, permitting the case to head toward trial, which ultimately caused the parties to settle out of court.
What If I Give Credit?
Many social media users mistakenly believe that they can post a copyrighted photograph from a photographer’s blog on their commercial Facebook page, so long as they give the artist credit. This is incorrect. While a court might consider an acknowledgment of the owner in a fair-use analysis, it nonetheless does not immunize the defendant against a claim of infringement.
The calculus changes, however, if the owner/artist shares their own work in a social media space. For instance, re-tweeting a beautiful photo that the photographer has tweeted to her followers, assuming proper attribution, would not infringe. (Indeed, isn’t that the point of an artist’s sharing work on social media?)
Also, keep in mind that sharing a small portion of a copyrighted work makes it more likely to be fair use. Posting a famous quotation from an entire novel, if the author is attributed, is not likely to result in a lawsuit, as opposed to sharing an entire copyrighted music video.
Tips for the Wary
● Inquire as to the source of artwork, photos, music or videos before posting them on your social media accounts. Do not assume that because something is accessible or download-able from the Internet that it is not a protected work.
● Check your terms of service. Twitter, for instance, says that users retain rights in the content of their posts, but users grant Twitter a “worldwide, non-exclusive, royalty-free license … to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content.” So feel free to re-tweet!
● Search for public-domain images to use in your posts.
● Do not encourage your followers to infringe – such as asking for commenters to post a photo of their favorite work of art or a video of their favorite song.
● When in doubt as to the right to use or acknowledge a source, the most prudent course may be to seek the permission of the copyright owner.