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
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.
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.