During a New Jersey wedding back in June 2017, Jonathan Otto snapped a picture of the new bride being congratulated by none other than the President of the United States, Donald Trump.
The photo of the serendipitous pop-in, which took place at Trump National Golf Club in Bedminster, N.J., quickly went viral after a relative of the bride posted it on Instagram. News outlets as wide ranging at TMZ, the Washington Post and CNN all rushed to cover the odd and historic moment, and used the photo to illustrate their news stories.
“President Trump Is the Ultimate Wedding Crasher,” was the headline on Esquire’s story, which ran the photo at the top of the page, giving credit to the Instagram account they acquired it from in the cutline.
It was obviously a newsworthy moment, with much of the coverage breaking down how President Trump continues to profit from his business properties while simultaneously occupying the White House. But in the rush to cover the viral moment, editors at news agencies forgot to ask one simple question: Do I have permission to use this photo?
So often these days, the lines are blurred with what constitutes fair use, and what doesn’t. It’s often assumed that photos posted on social media sites like Instagram, Facebook and Twitter are fair game to use, since individuals shared them there for personal use without compensation in the first place.
But in this case, Otto didn’t grant the news organizations permission to use his photograph and sued several news organizations for copyright infringement, including Esquire’s parent company, Hearst. Four media outlets ended up settling with Otto, but Hearst argued that using a personal photo to report national news was transformative.
“Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose—regardless of whether that photograph was created for commercial or personal use,” Woods wrote in a 31-page decision.
When navigating fair use issues, it’s important to remember that all content put on social media is copyrightable. In fact, the terms of service of just about every social media website makes it pretty clear that the creator owns the legal rights to their content, whether it’s a photo, cartoon or video.
For example, here’s how Twitter spells it out in their terms of service: “You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours—you own your Content (and your incorporated audio, photos and videos are considered part of the Content).”
With most social media sites, creators grant a royalty-free license to allow platforms to share the work while retaining ownership of the copyright themselves. Facebook (which also owns Instagram) flatly states in its terms of service, “You own the content you create and share on Facebook and the other Facebook Products you use, and nothing in these Terms takes away the rights you have to your own content.”
In other words, it’s okay for news organizations to embed content shared on social media sites such as Instagram and Twitter. But it could be considered copyright infringement if you download a photo and upload it into your content management system to use it with a story online, or run it in the print pages of your newspaper or magazine without seeking permission first.
Just because a judge ruled against news organizations in the case of Trump’s wedding crashing moment doesn’t mean the issue is black and white. Woods himself noted in the ruling that a fair use analysis depends on the individual factors of a specific case, noting that “the use could be considered fair in another matter involving a news publisher’s incorporation of a personal photograph.”
How news organizations use content shared on social media fall under an increasingly gray area involving the four pegs of fair use law: the purpose and character of your use, the nature of the copyrighted work, the amount of the portion taken, and the effect using it has on the creator’s market.
One clear case, where fair use laws line up in favor of news organization, is when the photo, cartoon or video is newsworthy on its own. Take for instance the case of former Rep. Anthony Weiner, a Democrat from New York who resigned after naked photos he sent to an underage woman on Twitter were acquired and published by news organizations. Another example were the Muhammad cartoons published by the Danish newspaper Jyllands-Posten, which led to worldwide protests.
But other examples, such as photos of a local car accident or a new business posting their storefront on Instagram, aren’t as clear cut. While both examples likely wouldn’t lead to a lawsuit against a news organization, if permission wasn’t sought out by the owner of the photograph, both cases could technically be considered copyright infringement.
“A lot of editors play the odds, wondering what the real chance of getting sued by someone is,” said Daxton Stewart, a professor of journalism at Texas Christian University. “If I were advising a publisher, I would not be comfortable as a media lawyer banking solely on that first prong of fair use law, because the others line up on the side of the copyright holder.”
Playing those odds could land a news organization with a hefty bill. Statuary damages for copyright infringement can add up to $150,000 per image. Photojournalist Daniel Morel was awarded $1.22 million in damages—the maximum statutory penalty available under the Copyright Act—after eight of his photos of the 2010 earthquake in Haiti were used without his permission by Agence France-Presse, Getty Images, the Washington Post, ABC, CBS and others.
So what can newsrooms do? Aside from simply embedding photos into your stories using the code provided by social media websites, the best advice is also the easiest to remember: Just ask for permission.
Rob Tornoe is a cartoonist and columnist for Editor and Publisher, where he writes about trends in digital media. He is also a digital editor for Philly.com. Reach him at firstname.lastname@example.org.