Is embedding a social media post in a news article fair use? MCGUCKEN v. NEWSWEEK

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 computers allow people to share information with one another masks the fact that copyright infringement can occur quite easily. 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. New 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.

MCGUCKEN v. NEWSWEEK LLC 19-cv-9617 (S.D.N.Y. 2020) illustrates a case where a news organization overstepped the limits of what is protected by fair use.

Plaintiff is a photographer that focuses on landscapes and seascapes. Plaintiff posts some of this work to his public Instagram account. One of Plaintiff’s photographs depicts an ephemeral lake in Death Valley. This photographs was uploaded to Plaintiff’s Instagram account. The day after Plaintiff posted the Photograph, Defendant, embedded the Instagram post of the Photograph in an online article about the same lake, titled “Huge Lake Appears in Death Valley, One of the Hottest, Driest Places on Earth.” Defendant’s article notes Plaintiff took photographs of the lake and incorporates quotes from Defendant about the lake. Plaintiff brought suit, alleging that the reproduction and display of the Photograph online without permission constituted copyright infringement. Defendant moved to dismiss, asserting Plaintiff’s public Instagram post granted Newsweek a valid sublicense to use the Photograph and, alternatively, Defendant’s use constituted a fair use.

The District Court reviewed the four fair use factors in turn. The court found that the first factor, the purpose and character of the use, weighed against a finding of fair use because Defendant used the Photograph as an illustrative aid depicting the subject of the Article. The court essentially found that the Defendant took a picture of a lake and wrote and article about the lake. Adding token commentary where the subject of the article is in the Photograph, not the Photograph itself, was not a transformative use. On top of that the use was for commercial purposes.

The second factor, the nature of the work, favored neither party. The creativity used to create the Photograph weighed against fair use, however the fact that the Photograph was published prior to the infringement weighed in favor of fair use. The third factor, the amount and substantiality of the work used, was also found to be neutral because when the work is a photograph, all or most of the photograph generally must be used to preserve its meaning.

The fourth factor, the effect of the use upon the potential market for or value of the work, weighed against fair use. To make this determination the Court presumed market harm because the Photograph was duplicated in its entirety for a commercial purpose. Defendant did not submit evidence to overcome this presumption.

Weighing the four fair use factors together the court held that the Defendant had not demonstrated that its use was a fair use as a matter of law, and allowed the case to move forward.

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