Avoid legal and ethical traps related to photographs on social media

Alicia Wagner Calzada, Alicia Wagner Calzada, PLLC

Q: Are there any legal or ethical restrictions on a newspaper publishing a photo from a social media post?

A: Yes, there are both legal and ethical considerations. The legal considerations are mostly related to copyright. But the ethical concerns apply regardless of whether or not you have permission.
All contemporary creative works — including photographs — are protected by copyright law. The owner of the copyright controls permission to use that photograph. The fact that a photograph is posted on the Internet or on social media doesn’t change that underlying legal principle. And remember that the person who owns a photo might not be the one who posted it. It is sometimes difficult to verify that the holder of a social media account is actually the person that they say they are.
When a social media user uploads an image, they typically grant broad permission to the platform (i.e., Facebook, Twitter, etc.) to republish the image within that platform, often based on various settings. However, the permission for reuse within that platform doesn’t extend outside of that platform. For example, within Facebook you might “share” an image on your personal page (if the setting permits it) and that would be fine. But downloading that image and publishing it in your newspaper would probably be a copyright violation.
There is one exception, and that is if the use of an image falls under “fair use.” Be careful though — fair use is often misunderstood. When a photograph itself is newsworthy, that can be fair use. But it is not fair use just because a photograph shows something newsworthy. Consider the case of Morel vs. AFP. In 2008 photojournalist Daniel Morel posted images on Twitter of a devastating earthquake in Haiti. AFP pulled those photos off Twitter, used them without permission, and was found liable for willful copyright infringement to the tune of $1.2 million. The use of those photographs to illustrate the earthquake required permission from the photographer. However, in news articles about the lawsuit itself, publishing newspaper front pages with the same photos — but to illustrate the lawsuit — might be considered fair use.
In a more recent example, Jerry Falwell, Jr., the president of Liberty University, posted a photo on his Instagram account where his pants were unzipped and he was standing next to a woman who also had her pants unzipped. Using that photograph with a story about the Instagram post and its fallout would most likely be considered fair use. In these situations, you are always better off using a screenshot that shows the photograph in context.
The potential legal liability should be enough to keep you from using images from social media without permission from the copyright owner, but there are also ethical considerations. A professional news photographer should be aware of and follow the National Press Photographers Association Code of Ethics and should never manipulate an image or otherwise violate those ethical guidelines. An amateur photographer may not even be aware of journalistic codes of ethics, let alone agree to comply with them. Even if the original poster doesn’t intend to manipulate the news media, they might represent the situation with bias. If an image implies something false and defamatory, you could also risk a defamation claim. For fun, look at the fake hurricane photos section of Snopes (and then pat yourself on the back for never having published a fake photo of a flooded airport during a major hurricane). Relying on professional images helps a news organization maintain its most valuable asset—its credibility with its readers.
News organizations fall into a potentially costly and harmful trap when they treat social media with a different level of care than they would other sources. Photographs are an important part of your news coverage, and they require due consideration to the source and reliability. Considering the value of your reputation, using reliable sources to illustrate stories is a good investment.

Alicia Wagner Calzada is the Deputy General Counsel of the National Press Photographers Association and owns Alicia Wagner Calzada, PLLC, a boutique law firm focused on the needs of publishers and creative professionals.