Fair Use Question of the Month: Illustration in News Reporting

Dear Center for Media & Social Impact,

I am a reporter writing on the growing popularity of food trucks. I want to use Twitpics circulated by customers to illustrate my news feature. Can I use those pictures without checking with and getting the approval of the people who Tweeted them?

Katie

Dear Katie,

Fair use applies to social media as it does to other media. And like all other exercise of a First Amendment right, you need to think about your use in context. Fortunately, you can consult the Set of Principles in Fair Use for Journalism to get help with your reasoning. The fourth situation deals with illustration, which is eligible for fair use, within limitations. So review the limitations before you proceed:

1. Do the Twitpics add meaningfully to your audience’s understanding of the facts of the news feature? To be clear, will these photos enhance the journalistic purpose of the feature, rather than serving as mere eye candy?

2. Are you using the appropriate amount (which in the case of a Twitpic may be the whole thing) to serve the illustrative purpose?

3. Have you previously entered into a contract with Twitpics or Twitter by which you are contracted to get their permission before using content they host? A contract could override your fair use rights.

4. Giving credit is good (not to Twitter, but to the people who took the pictures).