Update: The post below led to a research project regarding fair use and photographs taken from social networks and used for news purposes. The results largely confirmed the suspicions of this post, that using a photo is not fair use, with some exceptions. The article was published in the Journal of Telecommunications and High Technology Law in 2012, and a full, free, downloadable version is available here: http://www.jthtl.org/content/articles/V10I1/JTHTLv10i1_Stewart.PDF
It's a question I've heard from our student newsroom twice in the past couple of weeks, and I've heard some chatter on Twitter on it as well from @hartzog, @derigansilver and @johnrobinson. "Can I use this photo I found on facebook in my news story?"
The scenario usually unfolds like this: A story breaks on a relatively unknown person, and without a mug shot or an AP wire photo available, intrepid reporters turn to facebook or MySpace for photos of this person. Sound familiar? If you remember Eliot Spitzer's (ahem) friend from the high-end prostitution ring from a couple of years ago, or the red-haired Russian spy more recently, the first photos you saw of them were, most likely, from MySpace (in the case of Ashley Dupre) or facebook (in the case of Anna Chapman) accounts.
I'm going to guess that the reporters who dug up these photos didn't get them through a publicist or ask for, much less receive, any permission to publish them. This approach comes from the classic Internet culture of "I found it online, and it's free, so I must be able to use it." And that worked out so well for Napster, right?
Two issues come up in this scenario – one legal, one ethical. Legally, I see a huge copyright issue here. Whoever took that photo has a copyright in it, attaching the moment the photo button was pushed. It's an original work of authorship in a fixed medium of expression. The copyright act couldn't be clearer on this.
The question is, does it just become public domain by virtue of being posted on facebook? Of course not. If you put up a photo of your lost dog on a coffee shop bulletin board, does that photo become public domain, able to be used anywhere by any person who wants to grab it? If you leave a photo album on your coffee table, can any guest to your home borrow a photo and use it for whatever purposes they want?
So, moving online, is that unfortunate photo of you in the sombrero from college tagged on someone else's facebook account fair game for use by anyone – friend or otherwise – who can access it? Perhaps they could make a nice greeting card from it?
And I don't think this qualifies as fair use either. A use for news purposes would meet the first threshold for review under fair use guidelines, but under the four-part balancing test applied by courts in looking at fair use, I don't see how any one favors the republisher: The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.
So how, you may ask, did the photos of Ashley Dupre and Anna Chapman wind up with news stories about them? Chances are, reporters grabbed and posted, and nobody asked any questions afterward.
Think about this: What if someone had? What if the people in these photos, or the people who took them, felt wronged about the use of their facebook photos? What remedies would they have?
Invasion of privacy is, most likely, not an option. As you probably know by now, you don't have any reasonable expectation of privacy in photos or statements made on the Web. It's a bit like posting the lost dog poster in the coffee shop or putting out your photos on the coffee table – you give up your right to claim intrusion when you invite public people to see them. As my privacy-expert friend Woody Hartzog points out, you may have a (warning, legal jargon ahead) promissory estoppel claim through facebook's Terms of Service – that is, friends promise not to violate others' copyrights (see the Terms of Service, Part 5, first item) as a term of signing on to facebook, and breaking that promise means one could be liable for damages incurred as a result of that violation. The MySpace terms present a similar quandary.
[For what it's worth, the facebook Terms of Service DO allow facebook a "non-exclusive, transferable, sub-licensable, royalty-free, worldwide license" to use the photos you upload. These do not carry over to all users, of course. But creepy, eh?]
But that's not the strongest argument. If the person whose photo was used wants to make your life miserable, he or she could make an easy copyright infringement case against you. All they'd have to do is find the friend who took the photo, ask him or her to file for a copyright on it, then go to federal court and ask a judge for damages. Minimum statutory damages are $750 per violation, but I could see a photo that gains widespread attention bringing in more than that. Why shouldn't the person who took that photo be entitled to the same kind of protection that, say, a professional photographer should if somebody used his or her work without paying for it?
I'm not saying this is the most likely scenario. The easiest remedy for someone to take to remove a photo from unlawful republication would be to issue a takedown notice to the ISP under the Digital Millennium Copyright Act. But that won't make them any money, nor will it satisfy their lust for revenge.
People who feel hurt will find ways to hurt you back, and they have all the legal rights they need if you violate their copyright by reposting a photo. So don't do it.
Instead, take the easy and obvious route: Ask permission. Get it in writing (keep your email messages). Only reprint when you know the copyright holder has consented. And if you can't get that consent – it's probably a good thing you didn't publish it, right?
Onto the ethical ramifications here. While facebook users may not have any privacy rights guaranteed by the law, they do have reasonable belief that the service is to share their information with friends. As a journalist, would you have any ethical issues with rifling through the photo album of a citizen after he or she had been arrested or implicated in some huge news? Consider the following from the SPJ Code of Ethics:
"Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone's privacy."
"Show good taste. Avoid pandering to lurid curiosity."
Consider the photos of Ashley Dupre in a bikini. Is there overriding public need for this information? Or is this pandering to lurid curiosity?
In short, facebook photos aren't posted with the intent of becoming public domain and usable for any purpose, news or otherwise. Journalists should know better. And for those who don't, some day, the hammer will come down. I tell my students, "don't let this be you." I offer the same advice to journalists everywhere.