Updated: Oct 21, 2020
Ah yes, the social media copyright wars continue. This time the question is: can news articles use public Instagram posts that include copyrighted photos? The answer (as always): it depends. In fact, the Southern District of New York (SDNY) gave two different answers to this question on the same day.
On June 1, 2020 the SDNY issued rulings in both Rebecca Fay Walsh v. Townsquare Media, Inc. and Elliot McGucken v. Newsweek LLC. In Walsh, the court said that the news outlet’s use of a copyrighted photo was fair use. In McGucken, the court said not so fast. So what gives?
It all comes down to context.
When a Post is a (News) Story
In the first case, Rebecca Fay Walsh is a Brooklyn-based professional photographer. Back on September 5th of 2018, she photographed Cardi B at the Tom Ford Fashion Show. She registered her copyright in the photographs and licensed them through Getty Images. On September 10th, Cardi B posted on Instagram (IG) that her collaboration lipstick shade with Tom Ford had already sold out. The post included one of the pictures that Walsh had taken of Cardi at the fashion show. That same day, XXL Mag (which is owned by Townsquare Media) published an article entitled “Cardi B Partners with Tom Ford for New Lipstick Shade”. The article embedded Cardi’s IG post, which made Walsh’s photograph viewable via the XXL Mag article. Walsh sued for copyright infringement, but the court dismissed her claim, finding that this was fair use.
In the second case, Elliot McGucken is a landscape and seascape photographer. On March 13, 2019 Elliot posted a photo of a lake in Death Valley on his public IG account. The next day, Newsweek published an article about the lake. Newsweek embedded Elliot’s post into the article, which made the photograph viewable via the article. McGucken sued for copyright infringement. Newsweek moved to dismiss the case claiming, among other things, that its use was fair. The court denied Newsweek’s motion.
So what’s the difference? Both of these are news articles using photographs without permission (albeit via IG posts).
According to the court, the difference is whether the IG post itself is the story. If the post itself is the news story, then the news outlet has “transformed” the included photograph into something new.
So in the first case, the court found that Cardi B’s post (which happened to include Walsh’s photo) was the news story that XXL Mag was reporting on. The article centered around the controversy of whether Cardi B deserves to have her own lipstick shade and the post was featured as Cardi’s clapback to her haters. In the second case, the Newsweek article was not about McGucken’s photo. Instead, the article was about the lake, and McGucken’s photo was used merely as an illustration. Therefore, Newsweek did not “transform” McGucken’s photo into something new.
(Unanswered mysteries: How did Cardi B get the photograph in the first place? The world may never know.)
Should It Be This Way?
There has been a spate of social media-related copyright lawsuits over the past few years. These suits have come to be known as “copyright trolls” and have created the general consensus that copyright law needs to catch up with the times.
Personally, I’m torn on the issue. As someone who grew up with the internet (shout-out to dial-up), my natural instinct is that everything is fair game. You posted that on your IG? Sweet. Now it belongs to the world. On the other hand, as a lawyer I know that is not what copyright law actually says. And as an artist, I really want people to ask first before they use my work.
So I’m torn. What do you think? Should news outlets be able to use embedded Instagram posts that contain copyrighted photographs?
How can you protect yourself?
Questions about how copyright law affects you? Wondering how to protect your business? Book a call today with Bevel Law PLLC.
This information is not legal advice and should not be relied on to make legal decisions. Readers should seek legal advice from an attorney before taking action regarding the topics discussed in this blog.