Can I Use this Photo I Found on Facebook? Applying Copyright Law and Fair Use Analysis to Photographs on Social Networking Sites Republished for News Reporting Purposes

Abstract

When news breaks about relatively unknown people, news media sometimes turn to social networking sites such as Facebook and MySpace to find photographs of the subject, as was the case with the woman connected to former New York Governor Eliot Spitzer when his name turned up in a prostitution probe. However, posting photos on social media does not make them public domain, and copyright holders may have a claim for infringement for unauthorized use of the photos. This article applies the four-part fair use analysis to such situations to evaluate the validity of that defense for photographs republished for news reporting purposes, and it concludes that fair use likely will not provide a shield in most situations. In situations where news publishers act in good faith and photographs are independently newsworthy, however, the fair use defense is more likely to succeed.

Keywords: copyright, fair use, social media, Facebook, photograph, news, journalism