Digital Publishing: When using social media photos in your stories,the best thing to do is ask for permission

How does fair use work when it comes to viral photos?


When a journalist took a photo of a bride being congratulated by President Donald Trump, a relative of the bride posted it on Instagram, and the photo went viral. News outlets such as The Washington Post and CNN picked up the story and included the photo, one outlet even calling Trump the “ultimate wedding crasher.” One news outlet gave credit to the Instagram account where it found the picture, not the photographer. Three other outlets used the photo as well.

But in all the mayhem, news editors forgot to ask if they had permission to use the photo. Often, fair use is not determined in black and white terms, and people assume that photos on social media are free to use without giving credit to the creator.

Jonathan Otto, who took the photo of the bride, didn’t give the news organizations permission to use the photo and sued for copyright infringement. Hearst fought back claiming that using a personal photo for national news was transformative. The judge sided with Otto saying, “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.”

Fair use cases are judged on a case-by-case basis, but this particular case says that even social media content is copyrightable. Social media platforms can post the work, but the ownership of the copyright belongs to the author. News organizations should not shy away from sharing content from social media sites but need to remember to ask permission first.

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