I wrote an article for the Bloomberg BNA Social Media Law & Policy Report entitled “How to Enforce Terms of Service for Online Social Media Promotions and Contests.”  We tried to squeeze in a few more keywords.  The full article is available at the link below.

Bloomberg BNA Social Media Law & Policy Report – WorkSite Acrobat Integration

This weekend The Houston Chronicle reported Facebook did not turn over information requested by local authorities in response to death threats.  People have been criticizing social media companies for turning over data to government entities.  This time Facebook demanded a court order and now people are upset.  It shows how it is a difficult situation for online companies and sometimes they are damned if they do and damned if they don’t.

According to the article, a Facebook message said a user was “Going to kill everyone in Splendora on July 13th.”  Local officials asked Facebook for information, but the site told them to come back with a court order.  According to Facebook, the government officials never did.

A Facebook spokesperson is quoted as saying:

We promptly review and respond to all emergency requests. In this case, we reviewed the matter and asked to police to send us legal process or a court order for the requested information. The police have yet to send us any formal request.

 According to Facebook, on their Facebook and Law Enforcement page:

 We take the privacy of your information very seriously. If Facebook receives an official request for account records, we first establish the legitimacy of the request. When responding, we apply strict legal and privacy requirements. . . .

We work with law enforcement to help people on Facebook stay safe. This sometimes means providing information to law enforcement officials that will help them respond to emergencies, including those that involve the immediate risk of harm, suicide prevention and the recovery of missing children. We may also supply law enforcement with information to help prevent or respond to fraud and other illegal activity, as well as violations of the Facebook Terms.

This appears to be a Not In My Backyard situation online.  We all want Internet privacy, but when we perceive the threat is against our community, our principles get challenged.

I don’t believe the demand for a court order was out of line.  I am sure the law enforcement officials would have preferred just to be handed the information.  I stand to be corrected by those more familiar with criminal law procedure, but getting an appropriate order from a judge should not have been too onerous.  Although Facebook did not apparently turn over the information right away, I suspect this is not over and the investigation will continue.

UPDATE

A suspect has been taken into custody according to KHOU-TV11 after some unspecified cooperation from Facebook.  A 13-year-old girl is surely regretting her actions.

 

I’ll admit, General Mills did not go that far.  What they did, according to The New York Times was notify customers that if they downloaded a coupon, joined a forum or entered a sweepstakes, the customer would waive their right to sue in court and would have to go through an online “informal negotiation” or arbitration.

Since the story broke, General Mills is trying to backtrack.  For example, General Mills admitted it would not apply if you interacted with the company on Facebook or simply purchased one of its products at a store, but that the company could enforce it if you interacted on the company’s website.

However, there was a pop-up notice on the company’s home page that “require[s] all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration.”  Consumer watchdogs were concerned General Mills was trying to escape all liability for mislabeling claims or damages related to product recalls just because you “liked” a Facebook page or purchased a product at your local grocery.

In two recent cases, the Supreme Court has held related clauses to be enforceable.  In June 2013, in American Express v. Italian College Restaurant, the Court enforced an arbitration clause between AmEx and the merchandisers.  Two years before that in AT&T Mobility vs. Concepcion, the Court upheld a class action waiver.

Yet, there is still, and always will be, the issue of consent.  When I buy Lucky Charms for my kids (I know, Dad of the Year), I am not consenting to a long list of terms of conditions.  I am buying cereal.  A court would be hard-pressed to find I consented to a long list of terms and conditions on the General Mills website.  That would not be magically delicious in the least bit.

On the other hand, if I download a coupon, or enter a sweepstakes, I would not be surprised to have a pop-up that requires me to agree to terms and conditions no one reads. I might waive my rights to file a class action or a jury trial as it relates to that particular transaction.  In fact, I would not be surprised if this practice becomes more prevalent.

There may be some issues as to whether downloading a Cheerios coupon means I agreed to waive claims against Haagen Dazs in an unrelated transaction.

Despite the fact social media and the internet have made things a little more complicated and hard to keep up with, the basics of contract law still apply.  To bind a consumer, you need to show they consented to the terms which is why a click-wrap agreement is preferred over a browse-wrap agreement.  On top of that, especially when it comes to jury and class action waivers, you need to satisfy both procedural and substantive conscionability.

 

We created this infographic for some of our media clients to give them a one-page cheat sheet on the analysis they need to do when trying to decide whether they can use an image from the internet in a pinch.

The infographic includes all the caveats because rarely can a legal issue be discerned down to one page with so few words.  In fact, I wrote a three-part series on this very topic last year.  

To view this as a pdf, click Use of Images InfoGraphic.

 

A frequent question we get is what can we do about the online posting about me?  Often times, the answer is not much.  Lawyers can only help when the online conduct crosses the line into a cognizable cause of action.  Figuring that out is the hard part.

The Threatening or Harassing Post

Is there an ex spewing hate against you on Facebook?  Is a disgruntled fan or customer telling the world what they would like to do you?  Many times, the First Amendment will protect their conduct.  Sometimes, however, the law can help.

Take for example, a “fan” of the New York Knicks who suggested the owner of the team needed to die with posts that included naked pictures of the poster with a gun.  The police arrested him.

Sports often bring out the worst.  I’ve seen some of it with my own sports teams with the Michael Sam story and the question of whether the Houston Texans will use the first pick on Johnny Football.

Most fan rants are protected by the First Amendment, but threats of immenint harm or immediate calls to illegal actions are not.   Jack Greiner of the Graydon Head Out of the Box Blog blog breaks down the law on threats versus free speech in this case here.  The oversimplification is that if a reasonable person would believe the speaker has an intent to cause actual harm, then it can become a threat and not mere protected speech.   Moreover, when the target of the threat is a sport figure or politician, it may not be realistic to think the person would actually act it out, but there are enough crazy people out there for law enforcement to take a close look at some of these cases.

In addition to threats, may states, like Texas, have online harassment laws.  Perhaps, your ex knows better than to make a physical threat, but continuously harasses you. In Texas, a person commits an offense if the person “uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site: (1) without obtaining the other person’s consent; and (2) with the intent to harm, defraud, intimidate, or threaten any person.”

It is also crime to: “send[] an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person: (1) without obtaining the other person’s consent; (2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and (3) with the intent to harm or defraud any person.”

Revenge Porn

The American Bar Association recently wrote an excellent article on revenge porn you can read here. For the uninitiated, revenge porn is when the ex publishes what were supposed to be private nude pictures for the world to see often including full names, addresses, phone numbers and links to social media profiles. There is a whole cottage industry bubbling up of websites who encourage posters to provide this information.

As a victim, you can bring civil claims like invasion of privacy, intentional infliction of emotional distress and copyright claims if you took a selfie because the copyright usually belongs to the photographer and not the subject. But, these claims are expensive to bring and there are no guaranties because a lot of people blame the victim for having nude pictures in the first place.

Meanwhile, it is hard to sue the websites where these pictures are downloaded because Section 230 of the Communications Decency Act gives immunity to websites based on claims related to user generated content.

California passed a law last month that seeks to punish “Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.”

Professor Goldman on his Technology and Marketing Law Blog points out the faults of the law which include: (i) it does not apply to selfies; (ii) it does not apply to redistribution or websites which could have Section 230 issues; and (iii) the difficulty in proving beyond a reasonable doubt the parties’ expectations of privacy or the intent of the accused.

While there are some class action lawsuits against some of the sites that encourage this behavior that we will keep an eye on, one of the best weapons may be to shine the light on the scum who engage in revenge porn using the same social media tools and the let the markets take care of the websites.

Civil Claims

Most of the examples so far deal with criminal complaints.  To do that, you need to get the D.A.’s attention.  What about a civil lawsuit?  What can you do if the police or the D.A. won’t act?

You can follow the lead of a woman who is suing Sprint for invasion of privacy, infliction of emotional distress and identity theft after a Sprint employee posted explicit pictures of the customer who turned in a phone for an upgrade.  You can read more about the case here.

Intentional infliction of emotional distress can be a tough case to prove and the invasion of privacy of laws differ in each state.

Parents are also taking to the civil courts to address cyberbullying.

Related Posts

For tips on handling consumer reviews, go here and here.

With the short Thanksgiving week, I thought we would touch on a few interesting stories developing over the last couple of weeks.

Photographer gets $1 million+ verdict from AFP and Getty for copied Twitpics

In my three part series on using images from the web for your news stories, we talked about the Morel v. Agence France-Press case.  Agence France-Press, the Washington Post and Getty used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  The Washington Post settled, but the case went to trial last week against AFP and Getty.  AFP thought they had permission from the photographer to use the images, but they did not get permission from the right person.

Previously, a judge rejected AFP’s argument that it could use the images because they were put up on Twitter. The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  In the trial, it turns out AFP did not follow their internal guidelines on the use of images or take immediate corrective action.  The jury awarded the upper end of the statutory damages.

If you have policies, follow them.  If you make a mistake, you fix it as quick as you can. You can read about the case here and here.

Engineering gift for girls’ video spreads on Facebook – lawsuit follows.

I have a daughter.  I liked this commercial.

http://www.youtube.com/watch?v=UFpe3Up9T_g

I assumed they had the Beastie Boys’ permission.  Apparently, they did not and the Beastie Boys sent a copyright cease and desist letter.  The people at Goldiebox fought back and filed a suit asking the court to declare the parties’ rights.   Is it a parody or do the Beastie Boys have to do this to make sure more people don’t use their songs in commercials?  You can read more about the case here with some legal analysis from the EFF here.  At least Goldiebox will get some more attention with the lawsuit at the beginning of the holiday shopping season.

Want to criticize me, it will cost you!

KlearGear’s terms of service state:

“In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.”

A Utah couple criticized KlearGear on RipOff Report.  Soon thereafter, KlearGear sent the couple a bill for $3,500.  KlearGear never sued, but did report the couple as delinquent to the credit reporting agencies.  We have talked about being proactive, but not too proactive, when it comes to online complaints.  Since the news of this broke, KlearGear has shut down its Facebook page and its Twitter feed to hide from the blow back.  You can read more here, here and here.  This is not the kind of press you want before the shopping season.

Update 11/27/13 –  a lawyer is now representing the couple and has sent a demand to KlearGear to remove the notation with the credit agencies or face a Fair Credit Reporting Act lawsuit.  Read about it here.

Reputable companies line up to support TheDirty.com

Finally, we update you on the Jones v. TheDirty case we have talked about before.  This is the suit by a former Cincinnati Bengals cheerleader against the website TheDirty.   A Kentucky judge allowed the case to proceed against the rumor and trash site despite Section 230 of the Communications Decency Act which normally provides immunity for website operators based on user generated content.  The jury awarded $380,000 and TheDirty.com appealed.

While some may believe the ends justified the means against this particular defendant, the refusal to dismiss this case flies in the face of almost every other Section 230 case.  In this case, the court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”  TheDirty.com asks people to “submit dirt.” Their submission form has entries for the “dirt,” and provides a link to upload photographs. The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.”  Thus, no dismissal by the judge.

Section 230 has its place.  Imagine if Facebook, Google, or YouTube could be sued or had to police all of the user generated content.  I don’t think those services would exist.  That’s why many of them have filed amicus briefs with the Sixth Court of Appeals urging the court to reverse the ruling and dismiss the claims.  You can read more here about how and why the likes of Amazon, Google, LinkedIn, Google and Microsoft are asking for the reversal.

 

I don’t often make predictions on legal outcomes, so when I do and I get it right, it’s worth sharing.  In May, we talked about whether “liking” a candidate would constitute protected speech under the First Amendment.  A district judge in Virginia ruled it was not.  The Fourth Circuit Court of Appeals recently reversed in Bland v. Roberts.

In that case, a jailer in Virginia liked his boss’s opposition during a campaign for sheriff. The incumbent won and the plaintiff was fired. The sheriff said it was for competency issues, but the plaintiff said retaliation was the motivating factor for the termination.

I wrote back then that “it seems like a slam dunk case for our fired jailer,” before describing the district court’s dismissal based on the judge’s opinion that “liking” something on Facebook did not amount to a “substantive statement” worthy of protection.  Both the lunacy of the idea of liking a candidate on Facebook not being considered “substantive” enough to warrant protection and the questions asked during the appeal according to this Bloomberg report, I wrote, “I would put my money on a reversal.”

Winner, Winner Chicken Dinner! 

Reversing, the Fourth Circuit compared liking on Facebook to putting a campaign sign in your yard.  “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”

It is not likely your “like” will get you fired and set up a Supreme Court case. The lesson, however, is to be careful of making employment decisions based on what you see on Facebook.  The issue is more problematic for public employers, but as we have discussed before even non-union private employers need to make sure their social media policies and employment decisions do not upset the NLRB. ”Liking” a complaint from a co-worker about working conditions cannot be the basis of a termination.  In some states, it is illegal to fire someone for engaging in protected speech.  ”Liking” Coke when you work at Pepsi in an at will state, like Texas, can still probably get you fired.

In part one, we discussed how fair use may apply to the media’s use of social media images.  In part two, we looked at how the various sites’ terms of service come into play.  Today, we look at the one prominent case in this area and describe some best practices.

 The Agence France-Presse Twitter Case

There is just one well-known case involving the media’s use of social media images.  Agence France-Press and the Washington Post both used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  A judge rejected AFP’s argument that it could use the images because they were put up on Twitter.  The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  After denying AFP’s motion for summary judgment, the case, as far as I can tell, is still pending.

Best Practice

1.   Make sure it’s legit

It’s easy to get duped.  Jimmy Kimmel showed us that.  This is more a producer/editorial function rather than legal, but it’s worth noting here.

2.    Get permission

The good news about social media is that it makes it easy for you to reach out to ask permission.  You don’t need any magic language and you don’t need a lawyer to draft anything for you.  Send the person who posted the image – “Hi, I’m the producer, we are considering using this image.  Did you take it and would you mind if we used on the news?” It is not uncommon for there to be a small payment, but most amateurs won’t ask.

3.     Make sure you have permission from the right person

In the AFP case, AFP did reach out and tried to get a license to use the images.  They just did not get them from Morel — the actual photographer.  The AFP staffer saw the images on Twitter and reached to the account where the staffer saw them.  Unfortunately, that person had already lifted them from Morel’s account.  AFP then distributed the images to Getty and Morel was not pleased.   You can read more about the facts of the case here.  For those of you who want some more legal beef on the case, check out Professor Goldman’s post here.

4.     Don’t make promises in your request or box yourself in

Because of fair use, you don’t have to ask for permission.  Even if they say no, you might be able to use it.  Therefore, don’t send a message that implies you are only going to use it if you obtain their permission or suggests that you have to have it.  My example above would be fine.  Sending a message that says: “We have to hear from you soon to know whether we have your permission” implies it’s a requirement and could be used against you if there is a trial later.

5.     Attribution

If you are unable to get permission, then you should at least provide attribution.  Many amateurs would be satisfied with a little notoriety from the attribution.  Attribution won’t get you out of a lawsuit if they get mad, but it may help show you were acting in good faith or alleviate any anger so the person reconsiders whether they really want to file a lawsuit.

The Poynter Institute’s Adam Hochberg wrote an article titled “Twitpic, Flikr Use by Eyewitnesses Raises Questions for News Orgs About Image Rights, Compensation” that includes a good discussion of these issues.  According to the article, the Associated Press requires editors to contact all “citizen photos” and verify each image for both authentication and permission.  The article provides several ideas for an image policy and some of the issues involved.

What is the real harm?

The main point of this series has been to avoid any liability and provide some guidance and good practices.  I am not saying the minimal likely harm should be part of the decision-making process as to whether you violate a copyright.  When dealing with fair use, there is risk, but it is usually not a huge risk.  Assuming it is a close call (and you are not scooping or stealing some paparazzi images of the Royal Baby), you are likely looking at having to pay either actual damages or statutory damages.  The actual damages could be the market rate for the license to use the image.  The statutory damages, on the other hand, are between $750 and $30,000 per work.  If the fair use analysis is a close call and you use best practices, you are likely to be on the lower end of the statutory damages.  In the AFP case, the court ruled he damages would be assessed on each image used by AFP and not on each time it was subsequently downloaded or used after AFP sent it to Getty.  Whether you multiply $5,000 times 8 or 8,000 makes a huge difference.

If you mess it up, your biggest liability is likely going to be the bad P.R. and your legal bill.

Last time, we looked at whether the media can use images from social media sites applying fair use to several typical situations.  Today, we look at the specific terms of service of various popular sites to see if some make it easier than others for the media to use images.

Facebook:

Plain English:  Each user allows Facebook, and only Facebook, to do what it wants with the images subject to the privacy settings.   It gives no others any rights through its terms.  Facebook could sublicense to the image to you, but I have not heard of this being done for the purpose of news reporting.  As we discussed last time, the fact that someone puts up the image for the world to see can help with the fair use argument.

Twitter:

In plain English:  The same as Facebook.  Interestingly, Twitter includes a “Tip” section where it says:  “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”  There is certainly no issue retweeting images and posts, but the “tip” seems to be more broad because it would allow the media to repost images and posts off of the Twitter platform.  The Twitter terms do not expressly allow that, but this language could help argue it does.

Twitter also reserves the right to sublicense whatever is provided, specifically allowing Twitter to make it available to other media and platforms without any compensation to the user.  The tip says:  “Twitter has an evolving set of rules for how ecosystem partners can interact with your Content. These rules exist to enable an open ecosystem with your rights in mind. But what’s yours is yours – you own your Content (and your photos are part of that Content).”

While this is certainly not a green light to re-use images from Twitter, it could help a media outlet argue fair use.

LinkedIn

Plain English:  The terms contemplate that your images on LinkedIn may be copied, but they do not expressly allow it.  The terms warn “[a]ny information you submit to us is at your own risk of loss.”

Pinterest

Plain English:  The site had its own copyright issues in the past.  It tries to make it clear that anything a user submits is meant to be shared as much as possible.  The terms say: “You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products.”  This means they want you to share what you find on Pinterest, but only share it on Pinterest — not the front page or the 5:00 news.  

Pinterest has a section called “More simply put” that says “if you post your content on Pinterest, it still belongs to you but we can show it to people and others can re-pin it.”

Vine

Plain English:  Vine is allowed to sublicense content, but there is nothing that allows the general public to do whatever it wants with the videos.

Instagram

Plain English:  Instagram may sublicense the images, but there is nothing in these terms that would specifically allow the media to use the images.

Up Next

In our conclusion of this series, we will discuss a couple of cases and talk about the best practices.

 

The answer is one that frustrates people the most — it depends.  In most circumstances, you run the risk of violating the copyright of the person who took the picture, so the best practice is to seek permission first (more on that in part 3).  But, let’s assume you can’t get permission — after all, you are on a deadline.  So, let’s look at three different scenarios and the “fair use doctrine.”

The Fair Use Doctrine 

The most common response you hear from the journalist is that I’m a reporter so I can use these pictures as a “fair use.”*  Fair use is an affirmative defense to a copyright violation meaning, it is the media’s burden to prove the use was fair.  The Copyright Act specifically lists “news reporting” as an example of what could be fair use.  The Supreme Court, in the one case where it looked at the news reporting fair use angle, ruled that Congress’s inclusion of “news reporting” gives the media a good argument, but there is no presumption that it will always prevail.

Fair use is a factually-specific inquiry and there is no bright line test.  Courts consider these four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

For most commercial news gathering sites and stations, the courts find they are engaged in commercial endeavors – you sell advertising.  The media usually loses this argument.

(2) the nature of the copyrighted work;

Was this a professional photographer taking pictures to sell to the public or is this a less “artistic” photo already being freely shared with the public?  Most likely, if the photograph is being used for news and it is a simple Facebook photo, this factor will weigh in favor of the media.  The issue of whether the image, in and of itself, is newsworthy also comes into play.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is more applicable to excerpts of videos, books and music and is usually considered a wash when dealing with images.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is why you may have heard that as long as it is an amateur’s photo you can take it. That may help you with this factor, but this fact alone will not give you the green light.

The Picture of the Non-Celebrity

Neither a scandalous teacher nor, alas, a lottery winner

The local schoolteacher is caught in a scandal with a student.  Or, let’s be positive for once, the local man wins the lottery.  You need a picture of the person so you turn to Facebook or LinkedIn.  Why not just grab it? After all, they put it on the site for the world to see.

First, you want to check the terms of service from the social media site where you found the image (that’s #2 in this series).  I am not aware of a case where an average citizen has sued the media (as opposed to the school district for using an image in an what not to do presentation) for using their Facebook picture.  This is good and bad in that no one has ever ruled you should not use the image, but no one has said it is 100% OK either.

Assuming the license from the social media platform’s terms of service do not give the general public the right to do whatever they want with the image, you should go through the fair use analysis.

Fair Use Factor 1:  Media outlets that take advertising are engaged in commercial activities although the primary goal may be to educate the pubic.  Unless, you are a public interest group or non-profit, you are likely going to come out on the wrong side with this factor.

Fair Use Factor 2:   The more the image itself is newsworthy, the more likely the media will be able to use it.  If the image is one of the teacher with the student that is subject of the scandal, then that image is newsworthy and more likely a fair use.  If the picture shows the subject engaged in the activity related to the story, then it is more likely a fair use.  Also, the further away your purpose of using the image is from the original purpose of the image, the more likely you can use it.  For example, in cases where images from a brochure were used in a news story about Oliver North and his new endeavor and nude modeling pictures of a pageant winner distributed prior to her win were both considered fair use because, in part, the media’s use was different from the original purpose and the images were newsworthy.

Fair Use Factor 3:  This issue is usually a wash because still images require, for the most part, use of the whole thing or at least the key part of it.   The media may be able to say they only used one image out of a large portfolio or album from a social media profile, but this argument has not been made in court to my knowledge.

Fair Use Factor 4:  If the image is from a professional or a free lancer, you are going to lose this battle.  For example, a local Los Angeles station used video of a beating shot by an independent journalist without permission destroying that independent journalist’s ability to license the video for money.  Would the same apply to a Facebook image?  If we are talking about the typical profile picture, usually put up by amateurs for as wide dissemination as possible without any thought to the market value, then the media would probably prevail with this part of the argument.  If the scandal-ridden teacher has pictures  of her and the student she is not able to immediately hide, she could make an argument that because of new events, there is a market for the now sought-after pictures that she could provide on an exclusive basis.  On the flip side, someone probably has access to them ruining any “exclusive” commercial value.

As you have probably figured out by now, there are a lot of factors that go into the analysis and you would be foolhardy to have a hard and fast rule.  This analysis is simply to give you an idea of what issues come into play.  The decision should ultimately be made by the editor/news director, and if there is time, legal.

The Breaking News From Twitter

Almost everyone has phones with cameras and almost everyone has access to social media. Therefore, you will see a lot more “breaking news” caught by everyday citizens who post the images.  I even took an image of a fire and posted it to Facebook from my office.  Again, assuming you don’t have permission, we have to look at the fair use factors.

Fair Use Factor One:  Same as above.

Fair Use Factor Two:  By the nature of the hypothetical, this assumes the image is newsworthy which would give the media a slight leg up in the analysis.

Fair Use Factor Three: This is usually going to be a wash.

Fair Use Factor Four:  We are assuming these are truly amateurs and not professional who are posting the pictures.  If there are 50 other people near the fire/stand-off/crash/revolution taking pictures and posting them, the less likely there is commercial value to the images.  If, by some dumb luck, the Average Joe is hiking in the woods and sees the first talking moose, then there may be commercial value to the “exclusive” nature of the images.

A moose I saw on a hike. It did not talk.

As you can see, there is still no bright-line rule.

The Picture, Itself, Is Newsworthy

Unfortunately, the compromising image of the politician (thanks Anthony Weiner) is news in and of itself.  The same goes for the nude images of the beauty pageant winner or a news story about an image.   The mere existence of these images is the story.  You can’t tell the story without them.  While this may be the easiest analisys, in can still be perilous.  You most likely will be able to use it, unless someone has an exclusive or there is commercial value to the copyright holder.

For a legal article on this topic from 2011, check out Professor Daxton R. “Chip” Stewart’s article, “CAN I USE THIS PHOTO I FOUND ON FACEBOOK? APPLYING COPYRIGHT LAW AND FAIR USE ANALYSIS TO PHOTOGRAPHS ON SOCIAL NETWORKING SITES REPUBLISHED FOR NEWS REPORTING PURPOSES” in the Journal of Telecommunications and High Tech Law.

*The other common excuse is that the pictures are in the public domain because they were posted on Facebook for the world to see.  That’s just not legally correct unless the specific social media platform says that is the case.  We will examine that in part two.