Before you post a photo or tweet on social media, understand fair use rights
Can your social media post be shared for commercial use? It depends.
When you post an adorable photo of you and your friends, you may think that it can only be used on your social media platform. But according to fair use rights, is that always true? Sometimes yes, sometimes no.
There seems to be a miscommunication with social media users (largely those under the age of 30 who missed out on AOL dial-up, MySpace glitter backgrounds and are constantly oversharing) about whether their private or public posts can be shared by news platforms. It’s a valid complaint, especially when larger media platforms bring an abundance of attention that the average social media user may not get.
However, for those who understand how fair use rights work, this is a particularly strange argument. If you’re on a social media platform with a public account (or allowing strangers to follow your private account), what on Earth would make you think your tweets are the equivalent of a diary? If a tweet you voluntarily typed on a site that has embed links gets shared, why do you consider this a violation of privacy? My initial thought is, “This is bizarre. Log off and talk your friend(s).”
Playing devil’s advocate here, there are exceptions to the rule — and they largely revolve around copywritten material (i.e. photography and music).
When your photos become intellectual property
A few years ago, I worked for an online news platform that was trying to save funds on photography packages, specifically on entertainment news. One way of doing so was to share embedded tweets of legitimate celebrity photographs. Although the photographs were not to be cropped or edited, as long as the post was on a public account and had a shareable link, our team was told it could be used. (This gives the original user the option to delete that post at any time, which also means a writer could end up with a pointless post if the image is removed. But those were the risks taken to avoid snatching someone’s image without permission.)
That line of thinking came to a complete halt by 2018. According to the Electronic Frontier Foundation (EFF), photographer Justin Goldman accused online publications (Boston Globe, Breitbart, Time, Yahoo, Vox Media) of copyright infringement for publishing articles that linked to a photo of NFL star Tom Brady. Why did these publications become a target? Goldman actually took the photo. Another person used the photo in a tweet. And news platforms then used that photo in their news posts, without knowing if Goldman was giving them permission to use this image.
Images and social media are in a gray area because the person or news platform sharing the content may have no idea that this image is not considered fair use. (Further confusion arose with the Copyright Act versus the Server Test, after a judge stated, “Nowhere does the Copyright Act suggest that possession of an image is necessary in order to display it. Indeed, the purpose and language of the Act support the opposite view.")
This also happened with a legal case involving photographer Daniel Morel, who took photographs of the aftermath of the Haiti earthquake in January 2010. Agence France-Presse (AFP) and The Washington Post argued that the photographs were on social media, so they were fair use. In 2013, Morel ended up winning the lawsuit with $1.2 million, the maximum statutory penalty available under the Copyright Act.
As with the Goldman case, the Twitter user who posted Morel’s photos did so without attribution and AFP’s attorney felt that the person who posted the image should bear responsibility for the error. However, although Twitter does allow users the option to share and retweet anything on the social media platform, for-profit platforms (i.e. news platforms, paid bloggers) walk a fine line because they are using the images commercially.
Understanding company and client policies versus social media
So does this mean everyone who posts images that are not available on royalty free or stock image sites can rake in millions? Not really. Written public texts still fall under the fair use umbrella, and can easily be screenshot (if deleted later) or linked (if the writer doesn’t want to bring immediate attention to the content). But there are other rules and regulations that users should be aware of. For example, there are platforms that allow users to share images (commercial use included) long before they could reach social media.
One example is a dog caregiver. Using the dog-walking platform Wag! as one of example (of many), taking photographs inside of a pet owner’s home is off limits. From the Community Guidelines, “While in a Pet Parent’s home, regardless of the service you are providing, Pet Caregivers should not take photos. A home is a private space and should be treated as such. The only exception is when the Pet Parent has requested photo updates of the service.”
This leaves dog sitters in a sketchy area where they may want to build up their portfolios but want to protect the owner’s privacy, too. But let’s go outside of the home. Wag’s site used to have a shareable social media option after each outside walk, including an image of the dog. In recent weeks, the tweet now only links to users’ profiles for promo codes and additional walks. But the images taken by the pet caregiver could arguably still be considered their property. The photos are with their own phones or cameras, outside and/or (if dog boarding) in the caregiver’s own home. So if said user takes an image of the pet, the image legally belongs to the user — regardless of who the pet belongs to.
How to meet in the middle on social media and photo sharing options
I consider all of my public tweets to be fair use and generally expect friends, followers and foes to see them regularly. But with that said, and although I am still adamant about not sharing anything on social media that I would shake in my boots if anyone saw (clients and parents included), anytime I use a social media post in a Medium post or anywhere else, I always tell the user I’m doing it. Even if it’s an entire argument with a troll, I have never knowingly avoided telling someone I have used their social media post.
Journalists, bloggers, marketing execs and anyone else who uses social media for monetary gain should let users know that their tweets will be seen — it’s a courtesy. If they say “no,” it is fairly simple to still achieve the same post goals without the social media post. Does it add a level of legitimacy with it? Sure. But I can count off at least five of my top posts on Medium about a social media post without using a screenshot or the post has now been deleted. It doesn’t take much effort to send a tweet (or Facebook comment or Instagram comment) identifying oneself and the goal of how the post will be used.
Generally speaking though, if you don’t want the public to lay eyes on what you have to say about a topic — especially if you’re in the public eye and have a high amount of followers — keep the tweet (or image) in a personal journal. Celebrity or not, if you’re ashamed you said it or don’t want to get an @ comment for saying it, silence is golden.
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