Copyright and Social Media has become a gray area. Almost everyone is guilty of sharing something on social media, whether it be Facebook, Twitter, or Pinterest, that was copyrighted and not yours to share. But what is fair to use on social media or your site that is not infringing on the rights of the holder of the copyrighted material?

Is it fair use or infringement?

If you do not get a license from the copyright holder then the only way to use the content is using fair use.

What is fair use?

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. fairuse.standard.edu

2 Categories of Fair Use

1. Commentary and Criticism – Commenting upon or critiquing copyrighted material. Such as in a review, news report, teacher lesson, or court case.
2. Parody – A parody takes copyrighted material and ridicules it in a comedic way.

4 Step Checklist for Fair Use

Purpose and Nature of Use – The use of copyrighted material is “transformative”. This means the work was transformed by adding new expressions or meaning OR value was added to the copyrighted material with new information, aesthetics, insights, or understandings.

Example of Fair Use: Google images – All Google images are copyrighted by the owner. Google displaying them is considered “transformative” because it’s use of these pictures is different than the copyright holder’s use.
Example of Fair Use: Scary Movie Series – This movie series is a parody which takes copyrighted material to ridicule it. Value is added using new information, aesthetics, insights, and understandings.

Example of Infringement: Posting a copyrighted image on social media is for aesthetic or entertainment which is NOT a different use than the copyright holder’s use.

Nature of the Work – Using copyrighted actual information has more leeway in fair use than copyrighted creative works. Also there is more leeway in using published work rather than unpublished work.

Amount and Substantiality of the Portion Used – Less is more. Meaning the less you use of the copyrighted material the more likely it will be considered fair use.

Exception: Taking the most memorable (although small) part of copyrighted material  such as the opening riff of “Sweet Child O’ Mine” by Guns N’ Roses.
Exception: Parodies – Quite a bit of the copyrighted material, even the heart of the material, can be used for a parody. The Supreme Court acknowledges that “the heart is also what most readily conjures up the [original] for parody, and it is the heart at which parody takes aim.” (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994))

Effect of Use Upon Market or Value – If you deprive the copyright holder income or undermine copyrighted work that could have potential market it is not fair use and you are most likely looking at a lawsuit. This holds true even if you are not using the copyrighted work directly.

Example of Infringement: An artist takes a copyrighted photo from a photographer and uses it for a wood sculpture and earns a lot of money selling them. Even though the photography did not plan on make sculptures it was considered a potential market and the court ruled in favor of the photography. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992))

This is probably the biggest myth everyone believes about copyrighted material. Just because you source the material does not mean it is not still taking the material without permission. While this may help in a fair use determination it will not help in a infringement claim, especially if you are making any income on it.

You do not want to rely on fair use. The Copyright Office says,

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined.” (ncu.edu)

As you can see fair use is kind of a gray area and can put you in a difficult situation.
Instead of relying on fair use follow these steps for social media posting:

Check Original Source  – Sometimes the original source with have copyright notices and information about how it can be used. If you are unsure be safe and obtain a license from the copyright holder.

Check Social Media Terms and Condition – When someone posts original works on social media you should check the authorization to re-post, re-tweet, or re-pin that content. Read our blog Social Media Content Rights.

Example: Pinterest’s term of service states that if a user posts content on Pinterest they are providing a license to all other users to use that content on Pinterest.

Post a link instead of content – On social media post a link to the original source of the material instead of the material itself. While this is still infringement the chances of a complaint are much lower (especially since everyone does it). This does support a fair use defense.

Keep Sharing Within Network – When you find content on social media you want to share keep it within that social media. Do not take that content and then share it on another social media site. Always read the terms and services of the social media before sharing.

Some may think that if the content was posted on social media then it is fair game to use. This is not the case, the copyright still stands with the copyright holder.
Exception: Keep the content within network.

You can be held at fault for posting copyrighted material or even sharing something someone else posted that was copyrighted. While this seems to happen so frequently on social media the chances of you being sued is low but still possible.

Social media and copyrights is a very gray area and should be taken with caution. To be safe follow as many rules above.

U.S. Copyright Office Fair Use Index