Fair Use in Social Media

In today’s age of social media, the simple click of a button allows one to share and repost content in seconds.  As more and more social networking platforms evolve, the original poster or creator of the content often becomes further and further removed from the original post. While many content creators have tried to protect their content through traditional methods like watermarking photographs, trademarking brands, or patenting processes, technology still allows for evasion around such protection.

For example, when content becomes viral, sharers of the content often refuse to pay or acknowledge the original creator by arguing that content creators should be happy for the free publicity or attention.  When further pushed for payment, they may simply counter by stating that they will remove the content and that its removal should be sufficient alone.

In addition, some detractors often use the defense of fair use when confronted with unauthorized sharing of content.  This approach, however, is misguided.  In 2010, Daniel Morel photographed the aftermath of the devastating earthquake in Haiti.  Later, Agence France Presse (“AFP”) republished those photographs after retrieving them from a third-party Twitter feed.  When Morel sued AFP, AFP argued that their use constituted fair use.  Morel disagreed, claiming AFP’s unauthorized use of his photographs constituted copyright infringement.

The court agreed with Morel.  The factors that a court uses to analyze whether the fair use defense applies are: 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 use in relation to the copyright work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.

In the case at hand, the jury found that the infringement was willful and AFP could not hide behind Twitter’s terms of service nor a fair use defense.  The court basically ruled that if one intends to share third-party content, they must not only use proper attribution but must pay the original creator when applicable.  Likewise, despite however difficult social media may make it to properly attribute the content creator, that does not mean such authorized use will be permitted.

And although “news reporting” has long been recognized as a factor under fair use, one must remember that courts will evaluate all four of the aforementioned factors together.  As such, AFP and other unauthorized sharers cannot simply hide behind one factor and expect to successfully defend under the fair use doctrine.

In the end, one should always consult an experienced intellectual property attorney before using third-party content in a manner that could be considered unauthorized and/or commercial.  As willful infringement will often result in more damages for the plaintiff, consultation with legal counsel can often save brands and companies money in the long run.

For more information on this topic, please visit our Social Media Law service page, which is part of our Internet & eCommerce Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.Additional information about the Internet & eCommerce law firm and its Internet & eCommerce attorneys may be found at www.klemchuk.com.

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