Social Media Accounts Provide a New Twist in the Law Governing the Right To Use Photographs
A recent New York federal court decision adds a new twist to the law governing the right to use photographs that are posted on social media platforms and gives a new possible legal defense to individuals and businesses accused of copyright infringement for using photographs that are directly sourced from those platforms.
Many people incorrectly assume that using photographs on the internet is allowed and that anybody can use the photo for any purpose including a commercial purpose. Generally speaking, this is not the case. As we described in a prior article on copyright issues, under copyright law, the person who took the photograph still owns the copyright, and the display of the photo by someone else for a commercial purpose without the owner’s permission may constitute copyright infringement, unless certain exceptions apply, such as where the copyright has expired because it is an older work; the photo was obtained from the site of an organization that makes photos available for public use such as Getty Images; or use of the photo is permitted under the limited doctrine of “fair use.”
Applying these principles, courts have held that copyright infringement occurs when a photo is used for commercial purposes without the owner’s permission, even in cases where the business merely provided an embedded link to the owner’s website. These decisions favored the copyright owner.
A recent federal court decision points out a new exception to this general rule.
In Sinclair v. Ziff Davis, LLC, a photographer sued a media company for embedding a link to a photo from her public Instagram account. The media company used an embedded link to the photo on its website without permission from the photographer, after the photographer had refused an offer by the media company to pay her $50 for a license.