What's stealing and what's fair use of web content?

Updated, with new information about Creative Commons, on 27 Sept. 2015.

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 Twitter. 

Ellyn Angelotti,
Poynter Institute

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

So, to answer the student's question, it is generally OK to republish a tweet in Twitter or a Facebook update within those social network systems. However, each social media platform has its own terms of use, which you should consult before republishing.
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.

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:

1. the nature of the work. Facts, data, and news are generally of public interest and come under fair use protection. This factor can 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.
2. 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. 
3. the amount you use. It should not be so much as to replace the original. However, parodies and satires are usually protected because by their nature they make heavy use of the original material.  
4. the market value effect. The weight of this factor depends on how much the new work harms the market value of the original work.

These four aspects of a new work need to be weighed in determining
whether using copyrighted material constitutes fair use, Angelotti says.

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.

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.

Published with permission of Ellyn Angelotti, Poynter Institute

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