Train Staff and Freelancers in Basic Copyright Principles
Communicate to freelancers and staff that all company social media postings should respect others’ intellectual property rights. Ensure that individuals handling the company’s social media accounts have general awareness of copyright, fair use, and other rights clearance issues – whether you accomplish that task via an in-house training session, a third party webinar, a company handbook, or alternative means.
The copyright infringement lawsuit filed by the North Jersey Media Group (NJMG) against the Fox News Network illustrates what can go wrong when a company does not provide clear guidance to staff responsible for social media. NJMG sued Fox after Fox posted an NJMG-owned iconic 9/11 image to a Facebook page promoting the Justice with Judge Jeanine television program. After Fox's argument that the use was entitled to a fair use protection was rejected in a summary judgment motion, Fox elected to defend its use in a jury trial scheduled for early 2016. (See Note)
Here’s how the 9/11 image found its way to the Justice with Judge Jeanine Facebook page, according to the Fox-NJMG court documents:
A Fox production assistant held principal responsibility for managing and posting content to the Justice with Judge Jeanine Facebook page. She found and selected the 9/11 image for posting on Facebook after conducting an internet search on Google. The decision to post the image was hers. The production assistant, who had majored in journalism and media studies, had no copyright law training in college nor during her three-year tenure at Fox.
While the production assistant had access to the legal department and had previously consulted with it regarding the fair use of photographs and videos on the television program, she had never sought legal advice for postings on the Facebook page and did not seek the advice of the legal department or anyone else associated with the program before posting the iconic 9/11 image.
Encourage Staff to Use Pre-Cleared Pools of Creative Materials
Staff persons with no copyright training should not meander the internet in search of images to post to the company’s webpage and social media accounts! Read that sentence again.
Even images that appear to be rights free or come with Creative Commons licenses can still be problematic. With respect to relying on fair use, not even experienced copyright attorneys can always accurately predict which uses a court will view as a qualified fair use.
It might not be possible – or even desirable – to have a legal consultation for every image to be posted to the company’s social media accounts. One potential solution is making a bank of pre-cleared images available to staff and freelancers. There are stock image libraries of all sizes with the larger ones offering millions of images.
What’s ironic about the Fox-NJMG copyright lawsuit is that Fox may have actually had a license to post that iconic 9/11 image. Fox subscribed to the Associated Press photo bank and the 9/11 image is among the images the AP makes available to subscribers. Fox discovered this fact in the middle of the proceedings and after the deadline to amend its answer to NJMG’s complaint. The court would not allow Fox to amend its answer to add the defense of license. (North Jersey Media Group v. Pirro, No. 13 Civ. 7153 (S.D.N.Y., Mar. 2, 2015)).
The Lesson. If you have a blanket license to an image library, encourage – or, even better, restrict staff and freelancers to using images from that image library. Companies can apply similar strategies to music and footage by subscribing to stock music and stock footage collections.
Of course, even using stock images requires a modicum of guidance as there are definitely wrong ways to use stock images.
(NOTE: This posting previously incorrectly reported that NJMG and Fox settled the dispute after Fox’s failed summary judgment motion attempt. While the parties reportedly came close to settlement, those discussions ultimately proved unsuccessful.)