During a class on how news organizations use social media, one of my students asked if it was OK to republish any photo that appeared on Facebook, Twitter, or Weibo, the Chinese microblogging platform.
There is no simple answer to this question, but there are some guidelines, as I learned during an online webinar, "Navigating Copyright and Fair Use Issues in an Open-source World," offered on NewsU by Poynter Institute faculty member Ellyn Angelotti.
The legal concept of "fair use" in the U.S. and many other countries means that copyrighted material can be reused or republished as long as it meets certain criteria, Angelotti said. Copyright aims to encourage creativity and innovation by protecting a creator's work. But it also aims to encourage people to transform the original so that it advances public knowledge or creativity.
Some reuse is permitted
But is it OK to publish a photo from Twitter or Facebook or some other social network on your blog? On the front page of a newspaper? In a television news report?
Some journalists mistakenly believe that all they have to do is attribute the information to the original source and they would be protected. Not true, Angelotti said. The best protection, of course, is to get written permission to use the material. Without that, though, there are some factors that would weigh in favor of fair-use protection:
- The news value or public interest in a photo or news item was so great that it outweighed the copyright holder's protection (such as the photo of the airliner that landed in the Hudson River, which was posted on Twitter by a private citizen and used by news media all over the world.)
- If the new work is for educational purposes or is used by a nonprofit organization. However, if you are selling the new work, that might weigh against fair use.
- The amount of material used. Excerpts of a work are permitted, but even a small excerpt of a work might violate copyright if it were "the heart of the work" and significantly reduced the market value of the original.
- Parodies, satirical adaptations, and criticism are generally protected even though they make heavy use of the original work.
Creative Commons and attribution
Some producers of web content who want others to share and build on their work give permission under a Creative Commons license. The creator puts a notice on the content of the conditions of use. There are six levels of license. They range from allowing any user (even commercial) to republish and modify the original work as long as there is attribution and a link to the original, to allowing others to share the work but not change it or use it commercially.
These four aspects of a new work need to be weighed in determining whether using copyrighted material constitutes fair use, Angelotti says.
However, just giving attribution to the producer of the original work does not protect you from a copyright claim, Angelotti said. Whether a work violates copyright is ultimately up to a court to decide. Current law takes four factors into account. A work does not have to comply with all four to qualify as fair use. You need to do a balancing test of the factors. Any one of these four could trump or outweigh the others, Angelotti said. She likens the process to weighing four beans on a scale. The four factors (beans) are:
- the purpose and character of the work. It should transform or add something new. If the new work attempts to replace the original, that would weigh against fair use.
- the nature of the work. Facts, data, and news are generally of public interest and come under fair use protection. This factor can be very heavy and outweigh the other three in importance. - Information published on government websites generally would be considered fair game. An exception might be a photo or article that was explicitly copyrighted.
- the amount you use. It should not be so much as to replace the original.
- the market value effect. The weight of this factor depends on how much the new work harms the market value of the original work.
Angelotti gave the example of a picture of her dog that she posted on Facebook. If someone were to take that picture, produce framed prints of it and sell them without her permission, that could be a violation of fair use. However, if her dog saved some people from a fire and a fire department posted the dog's picture on its website, news organizations would have a strong case for publishing it under fair use.
In a complicated case mentioned by Angelotti, a Twitter user named Daniel Morel uploaded photos of the 2010 Haiti earthquake to his account. Agence France Presse and the Washington Post published the photos without his permission, and the images were used all over the world. Morel sued to have the images removed from the defendants' websites and asked for damages. A court ruled in favor of Morel, but the decision on damages is pending.
What we should take away from this case is that individual judges and juries may give different weight to the various factors, Angelotti said. There are no absolutes in the law. In other words, we should weigh the factors carefully before we republish material we take from the web. A good policy is to seek written permission.
This post originally appeared on the blog News Entrepreneurs and was posted on IJNet with permission.
James Breiner is co-director of the Global Business Journalism Program at Tsinghua University. He is a former Knight International Journalism Fellow who launched and directed the Center for Digital Journalism at the University of Guadalajara. He is bilingual in Spanish and English and is a consultant in online journalism and leadership. You can follow him on Twitter here.
Image CC-licensed on Flickr via 9bladed.