Fair Use Question of the Month: Facebook Pictures in News Reports

Dear CMSI,

I’m a reporter for a local TV news program. Recently a high school student in my town went missing and we couldn’t decide if it would be OK to use some of her Facebook pictures in announcing the news. I hope this is the last time this happens, but it won’t be the last time we turn to FB or Instagram or Pinterest to get an idea of who someone is. Can you settle this newsroom argument?

Best,
John 

Dear John,

You’re right, this is a question that’ll keep coming up. And if you want to employ fair use, you’ll have to answer it every time within the specific news context. But the way you will think about it is pretty standard. Fortunately, you can also lean on the consensus view of your community. You can consult the Set of Principles in Fair Use for Journalism [2] to get help with your reasoning. The fourth situation can help you think about social media use. (Fair use is applicable across all kinds of media—even music!) The fourth situation states that “fair use applies to illustration in news reporting [3]”—within the limitations provided. So to decide if you can use Facebook, Instagram, Pinterest or any other material you didn’t license, consider these questions, which put limitations on your fair use:

•   Will this material add meaningfully to the audience’s understanding of the facts or issues?

•   Did you use the appropriate amount? (In photographs, 100% is often the appropriate amount, as courts have recognized; you may also have questions about resolution size, or how many photographs to use, as well)

•   Did this material come from a business that provides such material for news purposes, like a wire service or a photo archive? (An individual’s social media account doesn’t usually fall into this category, but professional photographers and other media producers sometimes use their accounts to display their work, so think about it.)

•   Is there attribution? Did you explain where you got this picture?

Once you have answered these questions, you’ll be able to figure out whether using the Facebook pictures would constitute fair use in conformity with the consensus of the profession.