Navigating Uncharted Waters: Potential Copyright Issues with Embedding Publicly Shared Social Media Posts

*** The writing does not, and is not intended to, constitute legal advice by any means***

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Source: from publicly available court records

Courts are increasingly grappling with the question of how to apply the existing copyright law in the age of social media. Laws constantly evolve to adapt to the changing social and cultural landscapes. Although legal doctrines and their underlying policy rationales tend to carry the similar weight in the digital era, there are certainly novel issues that are unique to social media platforms. Furthermore, it does not help that those issues are developing at a dizzyingly rapid rate, making it extra difficult for the law to catch up. Today's post addresses one of those perplexing instances: embedding social media posts containing copyrighted works without permission.

Last year, Caroline Wozniacki, a professional tennis player, announced her retirement on Instagram by sharing a photo of her preparing to serve (pictured above). The photograph was taken by a photographer named Michael Barrett Boesen. Upon seeing the post, the United Sports Publications ("USP") ran a story on its website reporting on her retirement announcement. Boesen then sued the USP for embedding within its article the Wozniacki post that contained his copyrighted photographic work. The USP filed a motion to dismiss for failure to state a claim on the basis of fair use. As most of my readers are already familiar with the fair use doctrine, a successful fair use claim serves as a complete defense to copyright infringement. (See my earlier post to learn more about the fair use doctrine.) Let us see how the judge applied the four factors to the facts of the case. (Spoiler alert: The photographer lost!)

A. Purpose and Character of the Use

The judge started out by articulating that she "must determine whether [the USP's] use of [the Wozniacki post featuring the Boesen photograph] was transformative, taking into account any commercial purpose". Boesen v. United Sports Publications, Ltd, No. 20CV1522ARRSIL, 2020 WL 6393010, at *3 (E.D.N.Y. Nov. 2, 2020). Quoting the precedents, the judge found that the use was transformative enough when "the copyrighted work is itself the subject of the story". In other words, it was the very thing the article was reporting on. Id. 

The judge also noted that the fact that the USP is a for-profit entity (i.e. publisher) does not bar a finding of transformative use in this case. Unless the photographer can establish, though evidence, that the newspaper "derived any commercial benefit from embedding the post", the mere fact of the USP being a commercial enterprise do not tilt the scale in favor of the photographer. Id. at 4.

B. Nature of the Copyrighted Work

Observing that this factor typically carries minimal weight in the Second Circuit, the judge found that, despite its creative nature, the Boesen photograph "does not incur the same protections as an unpublished work (emphasis mine)". Id. at 5. I am not quite convinced by the judge's reasoning here. The fact that the photograph is an unpublished work does not mean that no copyright protection is afforded. Copyright attaches to any original work of authorship the moment the work is created and fixed in a tangible medium. The statute explicitly provides that the copyright for an unpublished work lasts for the life of the author plus 70 years.

C. Amount and Substantiality of the Portion Used 

The judge determined that the embedding did not involve any alteration. The newspaper shared the exact same thing that was displayed on Instagram, "retain[ing] all the marking of Instagram - Wozniacki's avatar, her profile name, the accompanying text". Id. at 6. Although Boesen maintained that the newspaper should have hired a freelance photojournalist or obtained his direct permission, the judge emphasized that the aim of "inform[ing] readers about Wozniacki's retirement on social media (emphasis mine)" could not be achieved by other means.

D. Effect of Use on Market

The judge stated that the proper inquiry is "whether the copy brings to the marketplace a competing substitute for the original" and found that it is not, especially given that the photograph in the Wozniacki post is low-resolution and cropped. Those who need the original in the market would still go to Boesen to clear the copyright for his original high-resolution, uncropped image. 

So you might wonder at this point why I brought up this case that seemingly has nothing to do with fashion? Because a score of fashion magazines and writers in the blogosphere routinely embed social media posts in their stories, which can later drag them into copyright infringement lawsuits. Here, the fair use defense prevailed, but who knows what would happen moving forward? Even as a legal doctrine, the four-factor inquiry is highly fact-sensitive and the presiding judge has the ultimate discretion to decide how much weight to assign to each factor. In fact, recent rulings in New York on the issue are divergent. Mashable won in a copyright infringement lawsuit mostly on technical grounds (Instagram's Terms of Use) in the Southern District of New York ("S.D.N.Y."), but another S.D.N.Y. judge recently decided to reconsider the issue in a case involving Newsweek. If this trend continues, the Second Circuit might step in to clear up the uncertainty if a case comes before the panel.

Social media platforms are gearing up as well. Instagram elaborated its embedding policy: "Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law." Of course, in practice, no infringement lawsuit is initiated unless the copyright owner decides to go after potential infringers. In fact, that is what is mostly happening now. In my opinion, it would help fixing the current mess if social media platforms institute a policy whereby they share the relevant copyright information regarding posts if the copyright holder strongly feels that the license must be obtained at all events. Am I asking too much here? Maybe. In the meantime, publishers and bloggers might err on the side of making safe choices - unless an embed is the very subject of a story, it would be wise not to embed.