Transformative Social Media & Copyright Law

transformative social mediaWhat makes for transformative social media?

An iconic photo is at the center of a potential shift in the relationship between what is considered transformative social media and a violation of copyright law.

Social media is a complex topic in terms of copyrights. Text, videos, photos and other copyrighted materials are often posted on Facebook or Twitter without much consideration for the owners. This sort of behavior generates liability for infringement. This issue has come to the forefront of copyright law with North Jersey Media Group’s lawsuit against Fox News, and now the network’s attempted defense at trial, and brings into question whether using somewhat altered copies of photos on social media can be called “transformative.”

Why is the potentially transformative nature of the posting of copyrighted material important? Because this is an essential element of fair use, the argument for copying protected works. If the use of the material can be considered transformative, it counts as fair use and, as a result, is not a violation of copyright law. Consider, for example, Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions, which pitted a niche magazine publisher focused on monsters against a book publisher in copyright litigation.

An illustration of transformation

The defendant published a book called “Famous Monster Movie Art of Basil Gogos.” Gogos was the creator of the cover art for issues of the monster magazine. Some of that work was published in the book, which prompted the magazine to sue. The book publisher received permission for the monster art from the creator, but not from the magazine. The plaintiff argued that under copyright under work-made-for-hire principles, the book publisher should have sought the magazine’s permission. However, the judge ruled that because the art was used in a retrospective of Gogos’ life and work, and not for the same purpose as it was created, the usage was transformative. That made the book publisher’s copying of the monster art fair use..

What makes a social media post transformative?

So, is the same true of copying protected photos, video, music or more within social media postings? The copyrighted material in question, in this case, is a photo taken by Thomas Franklin, that depicts firefighters raising the American flag atop the ruins at the World Trade Center site following the Sept. 11 attacks. Fox News posted copies of the photo to Facebook on the anniversary of that day, alongside copies of another iconic picture showing soldiers raising the American flag at Iwo Jima.

Fox News had argued that its use of the 9/11 photo, alongside its World War II predecessor, of sorts, as well as a #neverforget hashtag and commentary, was enough to ensure that the post constituted transformative use of the picture. However, New York Federal Judge Edgardo Ramos ruled against the defendant. He explained that featuring the two iconic photos side-by-side was not an original idea. He also stated that the use of a hashtag and additional commentary wasn’t enough to ensure fair use, either. The hashtag was used on myriad social media posts that day and the network’s commentary was not much more than an agreement with others commenting on the anniversary of the attacks.

The ultimate decision on whether Fox was wrong in posting the photo could provide a basis for future lawsuits concerning the use of copyrighted material on social media. How much does the poster have to add to make copying the material transformative? A ruling against Fox News would lift the bar from what Ramos’ opinion seemed to illustrate as the bare minimum to higher standards.

If you think your copyright has been violated through a social media post, or in some other way, consult an experienced entertainment law attorney for more information.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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