Embedding social media post in a news article found to be fair use. BOESEN v. USP

A copyright is a set of exclusive rights granted to the creator of an original work of expression. Copyright law protects original works of expression like books, music, movies, and photographs. A copyright owner is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone exercises one of these exclusive rights, without authorization, that can constitute copyright infringement. A copyright owner can respond to copyright infringement by filing a lawsuit to stop the infringement and get monetary damages.

The rights granted by copyright law in the United States have some limitations. One of the limitations of copyright law in the United States is known as fair use. A defendant in a copyright infringement lawsuit can claim that its use of a copyrighted work is protected by fair use and not be held liable for copyright infringement. When a court is presented with a fair use defense to a copyright infringement claim, the court analyzes four factors. Those four factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

The internet and social media present copyright law with many new and unique issues. The ease at which social media allows people to share information with one another masks the fact they may be unwittingly committing copyright infringement. Popular images and stories can spread quickly, it is trivial for a news organization to search for an image and reproduce the image in an article. News organizations have traditionally been viewed favorably when they invoke the copyright fair use defense. However, there are limits to how far a news organization can push the fair use defense.

BOESEN v. UNITED SPORTS PUBLS.,LTD, 20-CV-1552 (E.D.NY 2020) is an example of a case where fair use protected a news organization that reproduced a social media post that contained a copyrighted photograph.

Plaintiff is a professional photographer who took a photograph of professional tennis player Caroline Wozniacki in 2002. Wozniacki announced her retirement from professional tennis in a post on her personal Instagram account in December 2019. The post contained Plaintiff’s photograph. Defendant published an online article reporting on Wozniacki’s retirement and summarizing her tennis career. Defendant’s article included Wozniacki’s Instagram post as an embedded link. Plaintiff sued Defendant for copyright infringement, Defendant filed a motion to dismiss, asserting fair use.

The court found that the Defendant’s use of the photograph was transformative enough that the purpose and character of the use favored fair use. Defendant’s article was reporting on Wozniacki’s Instagram post and the Instagram post included the photograph. The nature of the copyrighted work, favored fair use slightly, because the photograph contains both informational and creative elements, and was previously published. The amount and substantiality of the portion used, favored fair use because it was necessary to use photograph as it appeared in the Instagram post to report on the Instagram post. The effect of the use upon the potential market for or value of the
copyrighted work, also favored fair use because the photograph appeared as part of a social media post, which included Wozniacki’s avatar, profile name, and additional text. This combined with the fact that the social media post included a low resolution cropped version of the original photograph meant that the Defendant’s use of the photograph was unlikely to compete in the market for the original photograph.

Finding that all four fair use factors favored a finding of fair use the court dismissed the complaint in favor of the Defendant.

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