Social media is a favorite platform for companies to promote their products and services. Companies are, however, often tempted to post pictures they don’t own, either as part of their social media feed, or on their website.  Sometimes they turn a blind eye to what they know might be inappropriate copying. Other times they are misinformed about when copying is appropriate. Below is an overview of legal do’s and don’ts of posting someone else’s photograph online.

Copyright Ownership and Consent

Generally, photographs that contain original content are protected by copyright (unless they are in the public domain). A photograph enjoys copyright protection as soon as it is created – whether or not registered with the United States Copyright Office.  That means consent to use it is required from the copyright owner (e.g., copy it, display it, distribute it, make derivative works from it). Giving attribution to the photographer is not enough.

In addition, many social media platforms have rules about posting third party content without consent. For example, in its Terms of Use, Instagram states that the user “represents and warrants” that it owns or has rights to the content posted, and that it does not violate the intellectual property (e.g., copyright) of any other person. Likewise, Facebook’s Terms of Service states that users will not post content that “infringes or violates someone else’s rights.”

Sometimes, consent may be assumed – but in a limited way.  Oftentimes the owner of a photograph enables it to be shared on social media by displaying various share icons. Sharing under that circumstance is presumably allowed. In fact, Pinterest (and Tumblr) state that users give other users consent to share between accounts.  But giving permission to share (which is typically in the form of a link) is very different from giving permission to copy and paste that same image. Moreover, it is a grey area whether the owner meant for the image to be shared commercially, as opposed to personally.  [As an aside, a federal court in New York recently ruled that embedding a tweet into an article, by using an embed code (which is a little different than linking) could rise to the level of copyright infringement.]

Consequences of Using Photographs without Consent

If you inappropriately post someone’s photograph without permission on a social media platform (e.g., Instagram), then the copyright owner can demand the platform to remove it under the Digital Millennium Copyright Act (DMCA). The platform will take down the infringing material immediately, otherwise they too could be held liable for infringement.

Copyright owners can also contact the user directly by sending a cease and desist letter, demanding money, and, if they are really aggressive, filing an infringement lawsuit. Getty Images, for example, is a fierce protector of its images. If you use one of their hundreds of thousands of photos, they will find out (using one of the web crawlers), send a cease and desist letter, and seek damages (sometimes in the thousands of dollars).

The Fair Use Exception

A lot of users rely on the exception of “fair use” when posting someone else’s photo.  But, its application is narrow, and not well understood. An easy way to think of fair use to to ask if the image is being used for a new and different purpose or function, and whether the viewer will have a different experience. That new purpose can be to teach, for research, as parody, commentary, criticism, or news.  Four factors are used to determine fair use:

1. Purpose and character of the new use, and whether it is for commercial purposes;
2. Nature of the copyrighted work (fiction or creative);
3. Amount and substantiality of portion used in relation to copyrighted work; and
4. Effect upon the potential market for or value of copyrighted work.

Purpose and Character of New Use and Commercial Purpose

The most important (and misunderstood) inquiry is the first part of the first factor – purpose and character of use of the copyrighted work. This is known as the transformative use test.  The more transformative a use is, the less the other factors are important. A new work is “transformative” if, for example:

• It is used for criticism, comment, or news reporting;
• It adds something new, with a further purpose or character, altering the first with new expression, meaning or message;
• The new work has new information, aesthetics, insights and understanding; and/or
• It uses the copyrighted work in a different context so that it is transformed into a new creation.

Admittedly, the transformative test is amorphous. Below are real life examples (with photographs from the actual lawsuits, where possible) to help explain how the transformative use test is implemented.

Examples of Transformative Use:

Example 1

Photographer takes photographs of musicians in concert, and posts them for the purpose of highlighting his photography.  A news company copied one of the photographs of Kenny Chesney in concert (Example 1) for use alongside an article about pro-life celebrities. The use is transformative because the purpose of using the photos differs. The original use was to illustrate rock concerts; the copied one is for political commentary. (Larry Philpot v. Media Research Center, Inc., (E.D. Va. 2018)).

Example 2

A couple posts of video on Facebook of their baby’s birth. The video goes viral.  Good Morning America showed a clip of the video and reported on why it went viral (Example 2). This use is transformative because the article is about the video itself and necessary for the story. ( Konangataa v. American Broadcasting Companies, Inc., (S.D.N.Y. 2017)).

Miss Puerto Rico posed for several risqué photographs. A newspaper published those photos (no photos here!) along with commentary about whether or not the photographs had any artistic value. The use was transformative because they were used for a different purpose (entertainment verses commentary). (Nunez v. Caribbean Int’l News Corp. (1st Cir. 2000)).

Example 3

Politician took headshots for the purpose of campaigning for office and for other positive marketing materials. Blogger copied headshot for an article criticizing the politician’s political views. Such use was transformative because it was for commentary and criticism. (Dhillon v. Does (N.D. Cal. 2014)).

Examples of Use Not Transformative.

• Company was the owner of several celebrity paparazzi photos (Example 4).  The owner of a gossip website copied and posted many of them (Example 4) for use with articles about the celebrities. Such use is not transformative because the images were displayed for the same purpose as originally displayed – to illustrate the fashion and lifestyle choices of celebrities with articles about their lives. (Barcroft Media, Ltd. V. Coed Media Group, LLC (S.D.N.Y. 2017)).
  

  Example 4

• A news anchor participated in a wet t-shirt contest which was photographed by audience members and posted on the Internet. The news anchor, who later lost her job, secured the copyright to one of those photographs. Hustler found the photograph on the web, and published it in an article about “news babes.” (Nope, no pictures here either!) The photograph was accompanied by a small amount of text. The use was not transformative because the purpose of using the photographs was similar to its first use – to show nudity for entertainment purposes. (Balsley v. LFP, Inc., (N.D. Ohio 2010)).
• Professional photographer took photos of Larry Fuente in front of his decorative Cadillac (e.g., beaded fins that look like flames). The Examiner reproduced the photograph as part of an article about art cars and described the decorated Cadillac. Such use was not transformative because the article was used for the same original purpose – to show how an art car looks.  (Psihoyos v National Examiner (S.D.N.Y. 1998)).

In addition to the transformative use test, the first factor also looks at whether the use is for commercial or non-commercial purposes. Commercial means whether the user makes a profit from it, even incidentally (e.g., used to induce the purchase of other products). Non-commercial uses are more likely to qualify as fair use than commercial. But using the photograph for commercial purposes is not determinative, if the other factors weigh in favor of fair use.

Nature of Copyrighted Work

Fair use is more easily found when using factual works rather than fictional or creative works.  That is because factual works typically enjoy only thin copyright protection, and creative works enjoy strong copyright protection.  For example, the headshot in the example above, was found to be more “creative” than “informational,” because the photographer made various choices in shooting and developing it.

In addition, the second factor looks at whether the work has been published or not.  Using published works is more likely to qualify as fair use, over non-published works, because the original work has likely already been exploited commercially.  An unpublished work has not yet had the opportunity to reach its full potential.

Amount and Substantiality of Portion Used

This factor considers how much of the work, qualitatively and quantitatively, was copied. If the user uses only so much as was necessary, then this factor weighs in favor of fair use. If the user uses only a small amount of the image, but it is the “heart” or more important part, then this factor weighs against a finding of fair use. For example, in the same headshot example, use of the entire headshot was necessary for its purpose and weighed in favor of fair use.

Effect Upon the Potential Market

This factor considers the effect upon the potential value of the image.  Considerations include the extent of market harm and adverse impact on the market for the original image. The more transformative, the less likely there will be any adverse market consequences to the original image. Notably, market harm under this factor does not look at whether demand is lessened due to, for example, a scathing review. Using the same headshot example, there is little market effect for using the headshot since headshots have little commercial value (headshots are not typically licensed for royalties).

What to Do Now?

Brands should perform an audit of their online presence, including social media feeds, to determine whether they are using any image without consent.  If so, the brand should conduct a fair use analysis. If the factors strongly weigh in favor of fair use, then the image can remain. If the factors are iffy, or weigh against fair use, then the company has a few options. First, and most conservatively, take down the image. Second, contact the copyright holder and ask for permission. Third, roll the dice and keep the image posted, but know that such conduct is risky. And finally, skip the headache, and invest in good stock photography.

Copyright 2018 by Anne Kearns Law

Visit www.annekearnslaw.com

The information contained in this presentation is general in nature and should not be relied on for any specific situation. Consult a qualified attorney for any specific legal advice.