Was the Tribune right to use Facebook photos in a news story?

Great Falls Tribune logoA lot of electrons have been spilled over John S. Adams’ story in the Great Falls Tribune on Sunday detailing a web of connections between former Gov. Brian Schweitzer, dark money groups and their staffers.

If you believe postings by some state social media staples, people are riled up over Adams’ use of Facebook as a source of photographs used as evidence in his story.

The ire against Adams is illustrated perfectly by a Facebook comment by retired state senator Mike Jopek on a public posting by political activist Jamee Greer. The whole thread is worth reading, but here’s Jopek’s comment:

The point is that if I can go into a non elected citizens Facebook account to lift a picture – which was not needed to make their point, then I can go into any citizens account in the name of news. What’s “fair use” and what’s not, re all those picture in the newsfeed.

Adams himself chimed in on the thread, denying any wrongdoing:

First of all, the Tribune simply re-posted a photo with an article that was already publicly available to anyone who uses Facebook. I didn’t “lift” any photos. Those photos were public on Frankin Hall’s FB page. I did nothing unethical by using them to illustrate the personal connections between a sitting governor, a paid political consultant/adviser, and an attorney tied to Louisiana fundraiser and treasurer of a dark money group. We credited the photo as coming from Franklin Hall’s FB page.

Adams goes on to call the fuss over the photo use a “red herring designed to distract from the story.”

There are some questions here that I’ll attempt to address and some I will not. I will not consider whether fuss over the photos is an attempt by democrats to distract from a scandal hitting Schweitzer. I will consider what the Tribune did and whether it was fair use.

What the Tribune did

Brian Schweitzer
Former Montana Gov. Brian Schweitzer. (source Wikicommons)
The social network-ly contentious portion of the Adams story begins like this:

Photographs uncovered on Facebook show Milstein and Schweitzer also know each other personally.

Facebook is mentioned in four paragraphs in the story in two subsections. In the first instance, Adams refers photos posted to the Facebook profile for chef Susanne Dillingham of Charlotte, N.C. In the following paragraph, however, Adams seems to instead be referring to the fan page for the Tiny Chef, Dillingham’s business.

It is from that page — this gallery specifically — that Adams took a photo showing Schweitzer, his wife, Dillingham, Democratic fundraiser Connie Milstein and other unidentified people.

The second mention of Facebook comes closer to the end of Adams’ story in the section describing Schweitzer’s relationship with Franklin and Melanie Hall.

Adams refers to the Facebook profile for Franklin Hall, who was an aide to Schweitzer. It is from this personal profile that Adams pulled a photo of the Halls being married in the governor’s mansion in Helena by then-Gov. Schweitzer himself.

It is worth noting that all the photos used by the Tribune were publicly accessible on Facebook and were not limited in their audience to friends or acquaintances.

It is also worth noting that the Tribune did not link to any of these sources in its story. Whether that is by Gannett or Tribune policy or by omission I cannot say.

What Facebook says about this

Facebook makes it clear in its Statement of Rights and Responsibilities:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Uploading intellectual property to Facebook also grants Facebook a license (“non-exclusive, transferable, sub-licensable, royalty-free, worldwide”) to reuse that content. That license ends if you delete the IP from Facebook — unless people you have shared it with haven’t deleted it.

Notably:

When you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information, and to associate it with you (i.e., your name and profile picture).

In regards to your relationship with other Facebook users, the terms state that you cannot do anything that infringes upon or violates another user’s rights or the law.

It also says that if you collect data from someone, you must do it with their consent, but that does not seem aimed at borrowing photos from a person’s profile.

The website’s Data Use Policy specifies that if you make a posting public, it can be associated with you, it can show up in search results, it will be accessible to apps and games, and it will be available via the Facebook API to developers.

The Data Use Policy also specifies that fan pages are public, and “information you share with a Page is public information.” This has to do with how you interact with existing pages, such as liking them or items on them.

Facebook’s statement of principles makes it clear that Facebook has no control over how information you post to the social network gets used outside the network (emphasis added):

People should own their information. They should have the freedom to share it with anyone they want and take it with them anywhere they want, including removing it from the Facebook Service. People should have the freedom to decide with whom they will share their information, and to set privacy controls to protect those choices. Those controls, however, are not capable of limiting how those who have received information may use it, particularly outside the Facebook Service.

It does not appear that Facebook’s terms of service prevent a third-party from making use of a user’s IP outside of Facebook, so long as that content was posted publicly at the time it was sampled.

That said, the terms of service note that the creator regains their IP rights to that content, opening up third-parties who use that content to copyright claims.

Fair Use

So, since Facebook doesn’t prohibit what the Tribune did in its terms, we must address this as a matter of copyright, specifically, the fair use doctrine.

Section 107 of the copyright law provides a four factors to be considered in determining if a usage qualifies as fair use.

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Notably, the explainer page (last revised in June 2012) points out: “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

Debate

Google “can newspapers use photos from Facebook” or similar searches and one of the first links that will almost always come up is to an article by Chip Stewart, professor at Texas Christian University’s Schieffer School of Journalism.

In response to the very issue we’re addressing in this post, Stewart writes that using a Facebook photo from someone’s profile for news would almost certainly not meet most of the tests to qualify it as fair use:

[U]nder the four-part balancing test applied by courts in looking at fair use, I don’t see how any one favors the republisher: The use is for-profit, the entire photo is used, it most likely is a significant element of the news story, and it harms the market for the original copyright owner by giving away for free what the owner could legally sell.

Stewart goes on into the realm of ethics, saying that while Facebook users may not have any legally guaranteed privacy rights, “they do have reasonable belief that the service is to share their information with friends.”

Stewart’s interpretation here doesn’t precisely square with the terms of service mentioned above, which clearly tell users who read them that they cannot expect privacy on things marked “public.” However, that doesn’t mean the argument couldn’t be made in a court of law.

Breaking News Situations

Across the Atlantic, the BBC has addressed this issue too — of course, that’s British copyright law, but the ethics principles are sound. The BBC editors say that they try hard in every case to contact copyright holders before using photos from social media. However:

in exceptional situations, where there is a strong public interest and often time constraints, such as a major news story like the recent Norway attacks or rioting in England, we may use a photo before we’ve cleared it.

On this side of the pond, NBC News also addressed this topic. Their analysis stemmed from the widespread borrowing of Stefanie Gordon’s photo of the Space Shuttle Endeavour’s final launch, which she took from her airplane seat above the clouds in 2011.

Gordon’s photo has been viewed nearly 1 million times, and shown by media TV, Web and print news outlets around the world. She was paid by precisely five news organizations.

NBC spoke with digital copyright expert Mary Luria, who said amateur photographers help open the floodgates when they post newsworthy photos onto social networks, where the sharing and resharing is often hard to track and impossible to stop.

News organizations often rely on fair use in breaking news situations and when there is no other source for a photograph of immediate public importance, Luria told NBC.

Fair Use is the subject of widespread debate, however, and its application is wildly subjective. Luria, for example, said that in situations where news publications have no alternative access to an important image in a breaking news situation, they would be protected by fair use.

Of course, that doesn’t provide blanket protection for news agencies. During the 2010 earthquake in Haiti, the Washington Post and Agence France-Presse took Facebook photos from Daniel Morel from inside the quake zone and republished them.

Morel sued and won, though the specific damages haven’t yet been determined. A jury will make the final decision on damages in September.

Of course, the Schweitzer story was not breaking news; nor were the photos of immediate importance to the public. They had sat quietly on Facebook for some time without drawing any attention whatsoever. Breaking news doctrine doesn’t make it fair use in Adams’ case.

Guidance

The most authoritative guide I was able to come by came from American University’s School of Communication’s Center for Social Media, which has published a guide to fair use in journalism.

The principles laid out there have been endorsed by a laundry list of journalism groups, including MediaShift, the Robert R. McCormick Foundation and Poynter.

The guide includes a great summary of the importance of fair use to almost every aspect of journalism. It also points out that judges in contemporary cases often refer to the same two questions, which I quote here from the guide:

  1. Did the unlicensed use “transform” the copyrighted material by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
  2. Was the material taken reasonably appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Most things journalists do, like quoting and paraphrasing, are transformative, the guide says, and courts have generally relied upon the industry and newsrooms to apply fair use judgement based upon the unique circumstances of each case.

The guide also outlines seven common cases where fair use might be called into play in journalism. Scenarios 2 and 4 seem most pertinent here.

Scenario 2 deals with the use of copyrighted material as proof or substantiation in reporting. Scenario 4 deals with the use of copyrighted material as illustration for news reporting.

When copyrighted material is used for these purposes, courts have tended to rule it fair use. You can read the details at the link to the guide itself. I won’t reprint them all here.

Response

All the writers I read agreed that the best way to avoid fair use and copyright conflicts is to obtain the permission of the IP owner.

However, when that is not possible, it seems a strong case can be made that newsrooms are the best judges of what is fair use according to their experience. In this instance, Adams said on Facebook that the decision to use the photos was discussed among many people in the Tribune newsroom. Ultimately, they felt using the photos qualified as fair use.

Specifically, they would be used as proof or substantiation in reporting on a public figure, even though the photos were not taken from Schweitzer’s own pages.

However, if we believe Professor Stewart in Texas, that certainly would not stop the IP owners from suing the Tribune and claiming damages.

Ultimately, it would be up to a judge or jury to decide whether it was really fair use.

I suppose the mantra we could take from this is: It’s fair use if a newsroom says it is, until a court says it wasn’t.

The larger question of privacy remains. How secure should people feel in putting up photos on social networks? Should people start guarding themselves all the time, just in case something they post could incriminate them or someone else they know?

Of course.

Internet privacy advocates have for years been telling us to be careful posting stuff online. It could get stolen, reused, repurposed or used against us in any number of ways. That is the way of the Web.

It doesn’t make it legal, but few people put up legal fights in those situations, even though they probably have a claim in a lot of cases.

Adams’ himself made it clear on the Facebook thread that the Tribune considers these things deeply before borrowing photos but that it would continue to borrow photos if need be:

I’m not trying to be glib when I say this, but if you are someone in the public or private sector who working to set public policy or elect those who will set public policy, then the rules of fair use are different for you than they are for an ordinary citizen. The threshold is not merely whether you are elected. If you are an agent of the state, if you are someone who is working to influence public policy, then we’re going to take a closer look at you than Joe Blow Citizen.

I think most newsrooms would agree.