Home » 2014 » May

Monthly Archives: May 2014

Can I use this Photo I Found on Facebook? Applying Copyright Law and Fair Use Analysis to Photographs on Social Networking Sites Republished for News Reporting Purposes

Can I use this Photo I Found on Facebook?  Applying Copyright Law and Fair Use Analysis to Photographs on Social Networking Sites Republished for News Reporting Purposes

Daxton Stewart


When news breaks about relatively unknown people, news media sometimes turn to social networking sites such as Facebook and MySpace to find photographs of the subject, as was the case with the woman connected to former New York Governor Eliot Spitzer when his name turned up in a prostitution probe. However, posting photos on social media does not make them public domain, and copyright holders may have a claim for infringement for unauthorized use of the photos. This article applies the four-part fair use analysis to such situations to evaluate the validity of that defense for photographs republished for news reporting purposes, and it concludes that fair use likely will not provide a shield in most situations. In situations where news publishers act in good faith and photographs are independently newsworthy, however, the fair use defense is more likely to succeed.

Virtual Deputies Help Rescue Stolen Newborn

Here is one more example of how the police use social media to combat crime.  In this case, a woman wearing hospital scrubs stole a newborn baby from a Canadian hospital. Shortly after discovering the abduction, the police made several social media posts describing the would be kidnapper and the car she was driving.  Several citizens recognized the woman from the posts and tracked her down.  These citizens then alerted the police who arrested the woman and rescued the baby.  

This example illustrates how law enforcement uses social media to reach out and engage the public.  Through this engagement, law enforcement can turn every day citizens into virtual deputies who assist with the apprehension of suspects and crime prevention. Like with anything, virtual deputies do have a downside; however, as demonstrated by this case, they also have a tremendous upside.

CNN: Kidnapped Newborn Found Thanks to Facebook

What Not to Post on Facebook (Especially If You Want to Keep Your License to Practice Law)

“You pissed off the wrong attorney. You want to beat up women and then play games with the legal system … well then you will get exactly what you deserve. After I get [my client] out of jail I’m going to gather all the relevant evidence and them I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little [expletive deleted]. I’ve got you in my sights now.”

An Indiana attorney allegedly posted this profanity-laced comment on the Facebook page of his client’s ex-husband. The attorney, who has admitted to making the post, claims that he did not mean to threaten the ex-husband only to inform him. Law enforcement, however, saw it differently and arrested the attorney on felony intimidation.

First World Problems: A Fair Use Analysis of Internet Memes

First World Problems: A Fair Use Analysis of Internet Memes


Ronak Patel


The phenomenon of Internet memes — pictures with juxtaposed text that replicated by derivative authors to the point where the pictures transcend the importance of the original posting and its underlying work — has become a pervasive component of mass Internet culture. Yet, there is little legal scholarship on the subject. This Article seeks to fill that void — or at least, a small part of it — by exploring whether or not an Internet meme could survive an action for copyright infringement by asserting a fair use defense. To that end, this Article considers what Internet memes are and compares them to “actual” memes, as the term was originally conceived in Richard Dawkins’ The Selfish Gene. Positing that Internet memes share many characteristics with actual memes as described by Dawkins, the Article goes on to show how those memes serve the functions of the theoretical concepts that ground the fair use defense (namely, cultural interchange, market failure, and productive consumption). The Article ultimately argues that a meme user will likely prevail if he asserts the fair use defense.


Censorship and Freedom of Expression in the Age of Facebook

Censorship and Freedom of Expression in the Age of Facebook 


Benjamin F. Jackson


Social network websites such as Facebook and Twitter have assumed a place of great importance in contemporary social life and politics, transforming how individuals interact with each other and how social and political movements organize and communicate with the broader public. While thus far social network websites have served as open and free forums for speech and debate, they face a number of internal and external pressures to engage in censorship. This Article argues that federal courts can and should extend First Amendment protections to communications on social network websites. Communications on social network websites are especially deserving of protection under the First Amendment because they invoke the freedoms of speech, press, and association, and because social network websites strongly resemble the spaces that the Supreme Court has protected under the public forum doctrine. However, because social network websites are privately owned, actions by social network websites to censor content would ordinarily fall outside the ambit of the Constitution’s protections. Nevertheless, courts can and should treat social network websites as state actors under the public function exception to the state action doctrine and, when appropriate, the entwinement exception to the state action doctrine.



Taking Images Seriously: New Law Review Article

Taking Images Seriously



Elizabeth G. Porter



Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts have been rebooting the same formalist templates for over a century — templates that were formed before widespread use of the camera, never mind the computer. Outside of trial, where image-driven advocacy has a long history, legal practice begins and ends with text.

But over the past five years, for the first time — unrecognized by scholars or courts — creative trial lawyers, receptive judges and the iPhone camera are breaching these conservative bulwarks. Images are moving out of the evidentiary margins, driving argument in litigation documents from pleadings to judicial opinions. Unregulated, visual argument threatens fundamental premises of legal discourse and decision-making. Yet in comparison with law’s rich and detailed traditions for interpreting ambiguous text, lawyers and judges have few tools beyond common sense with which to ameliorate the interpretive risks of visual persuasion. “I know it when I see it” is not merely an aphorism; it is the reigning interpretive canon for images in law.

This Article, the first comprehensive scholarly treatment of images in written legal argument, establishes and critiques the nascent phenomenon of multimedia written advocacy as a vital, if potentially problematic, element of a lawyer’s toolbox. It argues that despite substantial risks, the profession should cautiously embrace the communicative power of multimedia writing. It concludes by offering concrete suggestions for the fair regulation of multimedia persuasion, including two foundational canons of visual interpretation — the basis for developing new traditions for integrating images into written advocacy.

Sarah Jones v. Dirty World Entertainment (Section 230 of the Communications Decency Act)

Today, a three judge panel heard oral argument in Jones v. Dirty World Entertainment (Dirty.com). The defendant here is attempting to overturn an earlier trial verdict in which a jury found Dirty.com liable for hosting a website that allowed and arguably encouraged others to make defamatory statements about the plaintiff (Sarah Jones). Generally speaking, computer service providers like Dirty.com are not held responsible or liable for the content posted by others. This is because Section 230 of the Communications Decency Act grants computer service providers immunity with respect to the content posted by others so long as those computer service providers are not providing information content. In this case, the trial judge did not grant the Dirty.com immunity because of the following:

(1) The name of the site (The Dirty.com) encourages material which is potentially defamatory or an invasion of privacy

(2) Defendant acts as editor and only selects a small percentage of submissions to be posted

(3) Defendant reviews the postings but does not verify their accuracy


(4) Defendant adds his own comments