Copyright, Fair Use & Libel Reference Page for SMMA Editors
Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time. The exclusive rights are not absolute; they are limited by limitations and exceptions to copyright law, including fair use.
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship.
Defining Fair Use
Fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
- The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation. Under common law, to constitute defamation, a claim must generally be false and have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel. False light laws protect against statements which are not technically false but misleading.
There are five essential elements to defamation:
- The accusation is false; and
- it impeaches the subject's character; and
- it is published to a third person; and
- it damages the reputation of the subject; and
- that the accusation is done intentionally or with fault such as wanton disregard of facts 
The common law origins of defamation lie in the torts of "slander" (harmful statement in a transient form, especially speech), each of which gives a common law right of action. "Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander.
Libel is defined as defamation by written or printed words, pictures, or in any form other than by spoken words or gestures. The law of libel originated in the 17th century in England. With the growth of publication came the growth of libel and development of the tort of libel.
Examples of libel
An early example of libel is the case of John Peter Zenger in 1735. Zenger was hired to publish New York Weekly Journal. When he printed another man's article that criticized William Cosby, who was then British Royal Governor of Colonial New York, Zenger was accused of Seditious Libel. The verdict was returned as Not Guilty on the charge of seditious libel, because it was proved that all the statements Zenger had published about Cosby had been true, so there was not an issue of defamation. Another example of libel is the case of New York Times Co. v. Sullivan (1964). The U.S. Supreme Court overruled a State court in Alabama that had found The New York Times guilty of libel for printing an advertisement that criticized Alabama officials for mistreating student civil rights activists. Even though some of what The Times printed was false, the Court ruled in its favor, saying that libel of a public official requires proof of Actual Malice, which was defined as a "knowing or reckless disregard for the truth".
There are several ways a person must go about proving that libel has taken place. For example, in the United States, the person must prove that the statement was false, caused harm, and was made without adequate research into the truthfulness of the statement. These steps are for an ordinary citizen. For a celebrity or a public official, the person must prove the first three steps and that the statement was made with the intent to do harm or with reckless disregard for the truth, which is usually specifically referred to as "proving malice".
Creative Commons license
A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work. A CC license is used when an author wants to give people the right to share, use, and build upon a work that they have created. CC provides an author flexibility (for example, they might choose to allow only non-commercial uses of their own work) and protects the people who use or redistribute an author's work from concerns of copyright infringement as long as they abide by the conditions that are specified in the license by which the author distributes the work.
Can I use that picture?
After reading a good deal of material on the fair use doctrine I feel confident to propose the following guidelines:
Are we using the image for personal, non-profit, educational, research, or scholarly purposes AND are we using the image sparingly, only for limited purposes? The answer is yes so we are usually safe to use an image without permission.
Are we publishing the image in a fact-based context or publication that benefits the public as a whole? Again the answer is yes so, again, we are likely safe as long as the image is published in a non-biased way in order to inform or educate the public for the public's good.
It is generally considered socially acceptable to redistribute an image that was originally intended to be publicly viewed by the creator. However, much depends on the way in which we intend to use the image. It is unethical to redistribute an image on Facebook if a person didn't intend for the image to go public in the first place. It is also a good idea to cite the original source and its considered a best practice to link back to the original as well.
In the case of profile pictures from Facebook, those photos are generally intended for public view. Of course we have to be careful not to use unflattering or embarrassing pictures. Also, we can't just dig deep into a person's Facebook page and pull out something that is meant to be private or for a small group of friends.
If we're going to pull profile pictures I think it would be better off to use LinkedIn rather than Facebook whenever possible. LinkedIn pages are specifically meant for public presentation while in most cases Facebook pages are limited by users to specific groups or friends. Nevertheless, based on my reading I believe we're allowed to do this and it is safe to do so.
- Exclusive rights in copyrighted works
- Wikipedia:Fair use
- Title 17 of the United States Code
- Ron Hankin, Navigating the Legal Minefield of Private Investigations: A Career-Saving Guide for Private Investigators, Detectives, And Security Police, Looseleaf Law Publications, 2008, p. 59.
- Wikipedia:Common law
- Wikipedia:Creative Commons license
- Can I use that picture?