Democratic Texas State Representative Helen Giddings filed a bill prohibiting employers in Texas from asking for social media passwords from applicants and current employees. Texas joins a long list of states that have either passed or proposed similar legislation.
(b) An employer commits an unlawful employment practice if the employer requires or requests that an employee or applicant for employment disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile, through an electronic communication device.
(c) This section does not prohibit an employer from:
(1) maintaining lawful workplace policies governing:
(A) employee usage of employer-provided electronic communication devices, including employee access to personal accounts on those devices; or
(B) employee usage of personal electronic communication devices during working hours;
(2) monitoring employee usage of employer-provided electronic communication devices or employer-provided e-mail accounts; or
Six states already have similar laws and many others are considering similar legislation. The National Conference of State Legislatures has a good resource that tracks what all of the states are doing in this area.
Here are a couple of issues I see with the Texas version.
1. There is no exemption for employers to investigate wrongdoing.
For example, Michigan lays out some exceptions that exclude “Disciplining or discharging an employee for transferring the employer’s proprietary or confidential information or financial data to an employee’s personal internet account without the employer’s authorization”; and “conducting an investigation or requiring an employee to cooperate in an investigation . . .”
2. There is no exemption for highly-regulated industries like securities.
The Michigan law exempts employers “if there is specific information about activity on the employee’s personal internet account, for the purpose of ensuring compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct.”
3. What about shoulder-surfing?
The statute forbids employers from using “other means for accessing a personal account” but there is a qualifier at the end that seems to limit the employer’s access to the account ”through an electronic communication device.” So, can an employer tell an applicant or employee to log-in to Facebook while I look over your shoulder? It is certainly not clear. Other states take a more direct approach. The California law expressly forbids requiring an employee to “access personal social media in the presence of the employer” which would prevent shoulder surfing.
4. Immunity for employers who can no longer access social media accounts.
I normally advise companies not to use social media to screen applicants unless you have and follow a specific plan. I could foresee, however, that a mishap could happen at work and a creative plaintiff’s lawyer could argue negligent hiring because a social media search would have revealed the employee was racist, sexist, violent, etc. It would make sense then that if employers are prohibited from doing thorough social media research, they should not be held liable for failing to do so if something went wrong. Michigan has addressed this in its version by stating:
Sec. 7. (1) This act does not create a duty for an employer or educational institution to search or monitor the activity of a personal internet account.
(2) An employer or educational institution is not liable under this act for failure to request or require that an employee, a student, an applicant for employment, or a prospective student grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s, student’s, applicant for employment’s, or prospective student’s personal internet account.
5. What about students?
Many of the bills apply the same rules to secondary school, colleges and universities. If we care about privacy, shouldn’t we apply it to them as well.
These are just a few issues and I still question whether this a fix in search of a problem. Yes, there have been one or two publicized incidents of employers demanding access to social media accounts. But, I’m not the only one that questions whether laws forbidding requests for social media accounts are necessary. As the economy recovers, I would think this is something the market will handle. Besides, I see certain positions where such requests would be encouraged such as youth camp counselors or mental health providers, security personnel and employees for religious institutions.
This is the second part of our Texas Leg Watch 2013. The Texas Legislature meets every odd year, so we will monitor any bills of interest to the online media, marketing and start-up community. Our first post looked at a proposal that would allow civil lawsuits to be brought against internet online advertisements that resulted in human trafficking perhaps usurping the federal Communications Decency Act protections.
After looking at the most popular posts from 2012 in our last edition, today we look at what are likely going to be the big trends for 2013 in internet and marketing law.
Privacy and COPPA – Although this issue is not likely to dominate the general business population, privacy and COPPA will continue to dominate the media’s coverage of internet law issues — just look at Instagram’s latest dustup. Right before the new year, the FTC officially passed their COPPA regulations. Although the changes have been in the works for almost a year, it will take a while for companies covered by the Children’s Online Privacy Protection Act - generally websites targeted or directed to users under 13 – to comply. Surprisingly, respected folks like Nickelodeon have had COPPA issues and the FTC is watching the mobile app industry.
Cyber-Security - An issue likely to catch people off guard is cyber security legislation that may be written broad enough to cover more than just the major telecoms. Last year, efforts like the Cyber Intelligence Sharing and Protection Act (CISPA) and the Cybersecurity Act of 2012 failed to become law. Both the CSA and CISPA drew critics mainly related to personal privacy. The President may simply act by executive order. The business question remains how broad will any laws be, what sites and service providers will have to comply, what will that mean and how much will that cost? For more, David Gewirtz outlines the 14 Global Cybersecurity Challenges for 2013 on ZDNet.
Software and Tech Patent Reform - Whenever a programmer finds out I am a lawyer, I instantly get a tirade about our broken patent system. I’m guessing Apple, Samsung and Motorola would agree. In the well-covered battles,, the only winners appear to be the lawyers. Although I don’t practice patent law (it is not a field where one dabbles, so I leave that to my colleague David Henry), I have a hard time deciphering what was to be learned from those expensive battles and what developers should do. Maybe there is some hope for sensible patent reform.
Amending the Communications Decency Act – The CDA is the law that prevents people from suing the likes of Yelp and RipOff Report for reviews generated by users. It certainly makes sense not to allow lawsuits against Facebook and Google for defamation from other people’s content which would cripple those services. But online defamation remains a hot issue and more people are fighting back. I’m not sure if there will be any changes as the law is applied to consumer review sites, but what about loosening the law as it applies to sites whose whole sole purpose is to slander and then extort? Sites that call people whores with photos and run SEO’ed pure gossip sites of private individuals, but then offer “reputational protection” services for a fee to remove the materials. I purposefully don’t mention names or link to them so you won’t go check them out. Instead, if you are interested, go to a good advocacy group like CiviliNation.
The New Advertising Model – The FTC may push harder on Do Not Track legislation that could interrupt behavioral or targeting online advertising this year. Facebook and everyone else is still trying to figure out mobile marketing. I waxed philosophically at the end of last year about where advertising and user generated content may be going. (Are the YouTube commercials you can’t escape getting longer and do I want to wait to see a 30 second video I am already skeptical about?) Kirk Cheyfitz of PandoDaily says the best online ads of 2012 were not sctually ads. There are bright minds trying to figure this out and I expect by the end of the year, we will talking about one of them and a new product, service or idea we haven’t heard of before.
Yes, it’s the lazy way to do a post during the week before Christmas and New Year. In my next post, we will use this information to help predict the trends of legal issues for online media, marketing, internet law and start-ups for 2013.
The two posts were actually numbers 1 and 3 respectively and if you click on the Update and Editorial, you can see the original post. The original post was done in December 2011, but as Congress debated the issue in early January 2012, the readers kept coming. These two posts were the most popular ever for this blog and there was a lot of angst about what Congress. As we sit here with three days before the end of 2012, it almost seems quaint that Congress fought about SOPA rather than a made up self-imposed fiscal cliff.
This tells me there is a need for some Internet Law 101 type of information. On my list of things to do in 2013 is to put together a series of these types of posts for a more permanent placement. Should I self-publish an e-book?
This was the most interesting litigation matter I worked on this year. If you are a domainer the decision was very important. Or, if you just think the French are rude or still don’t like Zinedine Zidane from his 2008 World Cup headbutt, you might just find this story interesting.
Yes, that was a gratuitous French soccer snub. Now, to collect against the City of Paris in 2013.
4. The three-part series on online defamation that included (1) Protecting Yourself Online Does not Have to Include Legal; (2) How to Identify the Anonymous Online Defamer; and (3) Conclusion – Anti-SLAPP
This may have been popular because I often send potential clients there. If you think you have been wronged on a review site or by some blogger, read this series for a basic understanding of your options and the role a lawyer can play.
This tells me businesses are really concerned about online reviews. The DMCA protects the review sites, but should there be changes to this law? Of course, the review site is protected, but you should know by now that if you provide the review and it crosses the line, you could be liable.
On an interesting note, just out of the top five most viewed posts in 2012 was a post I did back in 2009 entitled Online Harassment Becomes Law Today. That tells me not much has been written about the Texas law and it probably has not been used too often. I often tell potential clients about it suggesting they visit with a local D.A. about enforcing the penal provision. I’ve not had anyone come back and tell me the D.A.. agreed to prosecute.
You agree that a business may pay Instagram to display your photos in connection with paid or sponsored content or promotions without any compensation to you.
The blogosphere immediately considered the worst case scenario (much like we lawyers do) and expressed concern that Instagram could take the cute picture of your kid and sell it so that it suddenly appeared in print, billboard or online advertisements without asking your permission or paying you. You can read some of the alarming immediate reaction here from CNet. Instagram eventually capitulated to the masses with a Thank You and an attempt to clarify on its blog. You can read Professor Goldman’s take on how it relates to a Facebook class action settlement.
The change was not as drastic as many had suggested because Instagram, and many other companies, already take expansive licensing over other people’s content. The existing terms already allow Instagram’s to “place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content.” Nilay Patel of the Verge argues the new language is actually better than the old.
So where is advertising going?
Facebook and Instagram have to make money. On the blog post, Instagram unabashedly stated:
From the start, Instagram was created to become a business. Advertising is one of many ways that Instagram can become a self-sustaining business, but not the only one. Our intention in updating the terms was to communicate that we’d like to experiment with innovative advertising that feels appropriate on Instagram.
But is there another way?
As explained in some of the links, isn’t it just a difference of degree and not kind that a brand can use my photo or content as a “Sponsored Post” on Facebook compared to taking that picture and putting it on a billboard? I can’t really foresee brands really wanting to engage with customers with amateur content running real risks of alienation.
But to make the most out of social media, brands need content. The current strategy involves buying time on Facebook as opposed to radio, print or TV using my stuff without paying me – the creator.
Yes, I, as the content creator, get to use Facebook/YouTube/Twitter/Instagram for free. But, I also get to watch TV for free. I would turn off 30Rock before I let them broadcast to the world a picture of me in my skivvies in my living room watching the show telling the world Travis Crabtree likes 30Rock, you should too. Is the current social media advertising model much different?
Will there come a time when this changes? Will there be a way for brands to pay for quality engaging content where the masses, as content benefit financially? Brands have marketing budgets and spent the money in the past on content. They can and will still do so. The trick is whether this can be done on a platform that attracts a large engaged audience?
2013 starts in 11 days. I say why not?
In July, Netflix CEO Reed Hastings posted on Facebook that viewing on his company’s site “exceeded 1 billion hours” of videos in June. The stock rose 6.2% on the day of the post. Last week, the SEC sent Netflix notice it may investigate. You can read the Washington Post story here.
Reg FD, or Fair Disclosure, is the issue. In a nutshell, companies must make public disclosures of material information to the general public and cannot selectively provide information to favored shareholders or investors. That’s loaded for two reasons – “public disclosure” and “material.”
Usually companies provide press releases to recognized wires or news services and then make public filings with the SEC to make public disclosures. The reg also allows for “any other non-exclusionary method.”
This time, the CEO sent the information to 200,000 of his fans on Facebook–many of whom were part of the business media who would have received the press release. The CEO also posted on his blog earlier in June that Netflix was almost at 1 billion hours per month. Neither were followed with press releases or SEC filings.
Reg FD was passed in 2000 — before Facebook and Twitter. It wasn’t until 2008 that the SEC formally approved making public disclosures via company websites under certain circumstances. Will this force the SEC to accept other more popular ways and current ways of disseminating information? Perhaps every CEO of publicly traded company should be required to follow an official SEC account so all of their posts or tweets are re-issued and available in one spot.
Even if the post was not considered a public disclosure, there is still a question as to whether it was material. As you can probably guess, “material” is not expressly defined, but the SEC has provided some guidelines. It may be material if there is a “substantial likelihood that a reasonable shareholder would consider it important” such as earnings, M&A issues, new products, changes in management or serious defaults.
Although Netflix says the information was not material, the stock did have its biggest one day rise in six weeks.
So do we ban posts and tweets from the corner office?
The Wall Street Journal ran a story in September about the risk of CEOs being on Twitter. If you can’t stop the CEO, here are some tips to minimize risks for upper level management involved in social media.
1. Have a plan. Review your current process you use to disseminate information to investors analysts and other in light of Reg FD. After you spot the risks, prepare a policy outlining the consequences and share it with executives, investor relations and anyone else who is responsible for talking to investors. Use the policy to do periodic Reg FD planning and designate a primary compliance person to review statements before they go out if there is a question.
2. Have a specific plan regarding earnings or other major announcements and collect all public statements not including social media such as SEC filings, press conferences and and conference call transcripts.
3. Track the social media accounts of your major executives. Unless you want to pre-approve the CEO’s message about the company softball game in advance, at least allow your primary compliance person to track all of the various social media accounts to take swift action.
4. Plan for the unintentional selective disclosure. That is a term of art under the Regs and requires corrective action beyond the scope of this post. Assume it is going to happen and be prepared for it with IR, management and your legal team.
5. When in doubt, bring a witness. If you are hosting a conference or call and you are concerned, bring someone along whose sole job is to recognize and note any unintentional disclosures.
6. Get insurance for your executives and the company.
Will the SEC come around and allow for Twitter and Facebook to be used for public disclosures? If the speed of their implementation of crowd funding is any indication, it may be some time before there is some brightline guidance. Until then, we have to watch what happens to others. Tesla could be next — on December 4, the CEO tweeted “Am happy to report that Tesla was narrowly cash flow positive last week” to his almost 113,000 followers.
An artist purchased old Razr cell phones and then published what he found on those phones in a new book after his original artistic idea fell through.
From the legal perspective, there are several issues that immediately come to mind:
Copyright. Genrerally speaking, if you took the picture, you own the copyright. If the picture you took made it in the book, you could claim a copyright violation. You would have a difficult time claiming any damages, but you might be able to get an injunction if you really pushed. There is a possibility that the artist’s use is a fair use for artistic/critical purposes or that using the image with the others is a transformative use. It is also possible to claim the copyright was abandoned and so the images are in the public domain, but that usually requires an express declaration that you don’t care if people copy your images rather than simply being careless and leaving it on your phone.
You could also claim a copyright in the texts, but short phrases and titles are not subject to copyright and there is some requirement of originality. “Can’t wait 2 C U 2night and by U I mean ur penis” may not cut it.
Invasion of Privacy. Many states recognize a common law claim for invasion of privacy. Generally, a plaintiff would have to show the artist intentionally intruded on the person’s private affairs in a highly offensive manner. This claim would require the jury to look at the reasonableness of all parties and may blame the person who turned over his phone without wiping it clean.
The claim for misappropriation of likeness for a commercial likeness also falls under privacy claims. Generally, you would have to show the artist purposefully appropriated your likeness or name in a way where your likeness can be identified for a commercial purpose without your permission. This claim usually applies to the use of celebrities without their permission more than an Average Joe, but you could argue this is not art or newsworthy and the artist is merely trying to make money from using the picture of you.
Computer Fraud and Abuse Act. The CFAA is usually anti-hacking statute, but you could argue the artist knew he did not have authority to access the images and text and therefore exceeded his authority on a protected computer. Would these older Razr phones be considered a computer and could you ever prove the necessary $5,000 in damages to bring such a claim? It could be worth exploring.
Based on the reports, the artist appears ready to work with anyone who may be upset with his book, so this may be an academic discussion. In fact, it does sound like a law school essay question. You would just have to add a few additional juicy facts like one of the images included a picture of a famous copyrighted picture while another was a video of a famous musician before they were famous singing someone else’s copyrighted song. Thank goodness I’m not in law school anymore.
Lesson Learned. The obvious lesson is to make sure you clean your cell phone or smart phone before you upgrade. Imagine if these phones belonged to a lawyer, doctor or other regulated profession and it had personal information. You should have a policy in place to prevent this type of mistake from happening.
The State of Texas may find out and it may be more applicable to your site than you think. In early filing for the 2013 legislative session, Democratic state Senator Leticia Van de Putte proposed a bill aimed at stopping at stopping human trafficking. The entire text is here.
It allows for human trafficking victims to bring civil suits against the wrongdoers including websites, that allow advertisements promoting the compelled sex trade. Specifically, it states a website can be liable if it:
publishes an advertisement that the [website] knows or reasonably should know constitutes promotion of prostitution or aggravated prostitution and the publication of the advertisement results in compelling prostitution with respect to the victim.
The Bill and Section 230
I’ll parse through the language below, but first I want to discuss how this law may interact with Section 230 of the Communications Decency Act. Section 230 provides the operators of websites with immunity from any suits caused by the content created by others. It states:
no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
It usually shields sites from defamation claims, but it has been applied to almost all claims that stem from the content created by others.
So what happens if a website simply allows anyone to create ads, specifically adult services ads without having any say as to the content? Would the CDA trump this Texas proposal? Online adult listing companies have already prevailed on several related suits in Missouri, Washington and Illinois. If Texas passes the law, it is likely to legislate its way into a lawsuit.
Numerous local and state officials have attempted to crack down on at least one known adult-listing service without much success. The passage of the law in Texas could be a symbolic statement increasing the fervor for Congress to make changes to the CDA. The CDA already expressly excludes liability for federal criminal laws including child pornography. Thus, Congress could carve out a similar exemption as it relates to human trafficking.
The Language of the Texas Bill
If the proposed law were to survive CDA and other challenges, it could present some interesting trial issues. First, you have to parse through the definitions. “Promotion of prostitution” is essentially pimping for one person. “Aggravated promotion of prostitution” is running a pimping enterprise of more than one prostitute. So, to be liable, the media company would have to know, or reasonably show know, that the advertisement is for promotion of prostitution (i.e., pimping).
A successful plaintiff would not have to show, however, that the website operator knew the pimp was engaging in “compelling prostitution.” Compelled prostitution means that through force or threat of force, you force someone to commit prostitution or cause a minor to commit prostitution–the human trafficking aspect.
While crass, the law essentially means that an advertisement for a “reputable pimp” who does not engage in “compelling prostitution” would be OK. But, if you think that the advertising pimp is “reputable” and they turn out not to be because they force people or use minors, the website would be in trouble.
Also interesting is that if you are the actual prostitute and you advertise, then the media company cannot be held liable because you are not engaging in “promotion of prostitution.”
How would this apply to my site?
You may be thinking that I don’t run an adult classified listing site, so while interesting, I don’t care. If you run any interactive site that allows for user generated content or messages, you may want to think again. Under this provision, “advertisement” is defined to include communications that promote a commercial service on websites “operated for a commercial purpose.” Read broadly, that could apply to every website that makes any money regardless of whether you accept classified listings or allow users to advertise, as we normally think of the term, on your site. In other words, the “advertisement” that creates liability, could be a comment a user posted on your blog that makes some money.
So, if a pimp takes to Facebook and posts a free message promoting human trafficking, could Facebook be held liable? Their liability would all come down to what did Facebook know or should it have known?
Human trafficking is a serious issue. According to reports, adult classified that may involve adult trafficking is also serious business. Without action from Congress, any efforts by Texas or other states to crack down on online advertising is likely to lead straight to the courthouse.
It means I woke up to this actual post from a Facebook “friend” of mine:
Christian or not, Praise God we still have some freedom of speech and can voice our opinion. That being said here are words for thought…Do you know what America has in common with those countries in poverty and constant devastation??? God is missing! Now some people have voted to put a Muslim to lead this nation another4 years. We need to be on our knees in prayer and fasting! Those that were at rock bottom4 years ago are doing better than they were 4 years ago because Obama rewarded them by living off the government by giving them more benefits.
There were others that decried our move to socialism and lack of American values and morals as if half the country suddenly rejected morals and values. While folks settle down, I thought we would take a look at what President Obama’s reelection means for technology and internet law.
Professor Eric Johnson of the Blog Law Blog put together a pro-Obama endorsement prior to the election. Citing an American Science article, President Obama answered “What role, if any, should the federal government play in managing the Internet to ensure its robust social, scientific, and economic role?” as follows:
A free and open Internet is essential component of American society and of the modern economy. I support legislation to protect intellectual property online, but any effort to combat online piracy must not reduce freedom of expression, increase cybersecurity risk, or undermine the dynamic, innovative global Internet. I also believe it is essential that we take steps to strengthen our cybersecurity and ensure that we are guarding against threats to our vital information systems and critical infrastructure, all while preserving Americans’ privacy, data confidentiality, and civil liberties and recognizing the civilian nature of cyberspace.
Cutting through the rhetoric, it means President Obama does not support SOPA as last proposed. I’ve blogged on the pros and cons of SOPA. Professor Johnson suggested Governor Romney, meanwhile, was against net neutrality which we discussed before.
Ron Coleman’s Likelihood of Confusion blog put this infographic together before the election:
Courtesy of: LIKELIHOOD OF CONFUSION® Blog
Like every election I have been a part of, this one was described as the most important of my lifetime. If technology and internet law are your main issues, this was not an earth shaker. SOPA and PIPA were already headed toward serious re-writes regardless of the outcome.
In a post today, Professor Johnson suggested a still too close to call race in the House may be more important.
Although you didn’t ask, I prefer post-election Facebook analysis like this:
What 2016 domain names are being snapped up from Domain Name Wire.
The Wall Street Journal on why Obama’s win may not be good for India tech industry.
The Wall Street Journal Digits blog on Twitter tracking the election.
Kevin O’ Keefe of Real Lawyers Have Blogs asks if this was the last social media election.
Shoot me an email or a comment if there is a topic or question you think should be addressed. I’m looking forward to it. With this group, success is seeing the back of iPads and phones tweeting. Actual human attention can be scary.
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Social Media Breakfast Houston:
Legally Social: Asking the Hard Legal Questions
Friday, November 9 · 8:30am – 10:00am
Legally speaking, social media isn’t as much of a Wild West Frontier as it once was. Case law is starting to catch up with the reality on the ground and there is a lot more being defined, even as we speak. We have asked two of our resident legal experts to come in and give us all some tips that will help keep us out of trouble and solve difficult problems.
Here are just a few of the questions that we plan to ask. If you have others, be sure to add them to the comments section on the Facebook event page:
1. What if you find out after the fact that you are using trademarks that belong to someone else? How can you avoid that?
Travis Crabtree, Member
Katie Sunstrom, Associate
Here are a few tips and rules about using images on your blog or website. Not only is simply copying something from the web a moral issue, it can get you into legal trouble.
Don’t Copy and Paste
Yes, the image is on Google Images. Yes, it would be easy to cut and paste and it fits with the topic of your post. But, just because it is on Google images, doesn’t mean it is free game. You don’t have to file something with the copyright office or attach the © for the image to be copyrighted. Bloggers like to brag about their social media prowess and not wanting to upset them. Photographers are often the same way and they come to the defense of their own.
Stock Photo Services
There are websites that offer photos for your use at a relatively cheap price. You can purchase some of the “royalty free” which means once you purchase them, you to use them as many times as you like in as many mediums as you like.
You may also find “royalty managed photos.” These are photos you purchase for a specific period of time and a specific type of use. You might be purchasing a photo for the home page of your website for one year. Or, you might be purchasing a photo to include as stock art in the October issue of a magazine you produce. These photos are usually very high quality and usually high in cost. If you use one of these, you need to make sure to calendar when the license is up so you can remove the image. Otherwise you are at risk for paying additional fees for the period the image is left up. If you repeatedly use the image in a number of mediums you could be at substantial monetary risk.
Also be careful if you hire someone to design or post content to your blog or site. They may have paid for the initial use, but let the license lapse. This has happened to many a website owner. Eight years later, you get sent a bill for the six years you have used the image on your site without permission.
The Creative Commons License
Just because something is subject to a Creative Commons License, you need to dig a little deeper into exactly what kind. For example, photo sharing site Flickr describes five different types of creative commons licenses. Just take a minute and follow the rules applicable to each one.
What about Watermarks?
Some photos contain watermarks to prevent their wide-spread use. Some people really want to use the image and digitally remove the watermark. Bad idea. Not only are you liable for the value of the image, you are definitely looking at enhanced statutory damages and fees. Don’t remove or crop them out.
Can You Digitally Manipulate Purchased Photos?
You should always read the fine print in the contract but typically once an image is purchased you have the rights to edit and manipulate that image as you desire.
Can you digitally manipulate an image and then claim it as your original?
Some people believe that If you take an image from the web and alter it enough, you create an original work not in violation of the original copyright holder. You would be drawing a fine line between a transformative work (which means you have altered it enough to make it your own) and a derivative work (which means you have not altered it enough and the original owner still has the rights). This is a factually-intensive issue, so if you need to consider it more, check out Peggy Hoon’s Collectanea post on “Making Sense of Derivative Works, Transformative Uses and Fair Use.” For a real world example, check out the story about the lawsuit over the iconic image of President Obama.
What about Fair Use?
How much time do you have? See above for both the more detailed link and the use of the President Obama images. Because we are talking about the news value of the images, it likely involves fair use.
When in doubt ask
Don’t assume photos are free. If you have any doubt, just ask. Just as important, keep that email as proof. Even if technically you did not get permission from the right person, you will show you made a good faith effort and avoid any willfull infringement finding which can make you liable for statutory penalties and attorneys’ fees.
Use your own
I try my best to use my own photos when I can, or simply show the symbols of the companies I am referencing. My images often focus on my kids. They will only be cute for a few more years before they turn into teenagers so I might as well take advantage of it while I can. Otherwise, I will have to pose the family pet into ridiculous poses.