Ask an attorney: 3 social media legal insights from Jeff Hermes, deputy director, Media Law Resource Center


Jeff Hermes serves as one of two deputy directors of the Media Law Resource Center, where he focuses on digital media law issues. As a guest speaker for LMA’s Social Media Club — an offering of the Local News Resource Center — Hermes shared insight into some of the news industry’s prominent legal issues pertaining to social media. We pulled three valuable discussion highlights about copyrights when sharing content gathered on social platforms.

1. Don’t cross social media platforms when republishing someone else’s content.

Hermes said retweeting on Twitter or sharing a Facebook post within Facebook is generally a safe practice for news publishers. However, taking content from one social platform and putting it on another — for instance, sharing a picture of a tweet to Facebook — would not automatically be protected. This is because the creator of the content agreed to the terms of use only for the specific social media platform on which it was posted. The creator, who owns the copyright, did not agree to have a copy of the content distributed elsewhere.

“If someone publishes content on Twitter, the very fact they are using Twitter — because of the operation of the platform’s terms of use and the nature of the platform — presupposes they are giving permission to other people, what is called an implied license, to retweet that material,” Hermes said.

“Just because somebody shares something on social media, does not mean they are giving you permission to do whatever you want with it. They’re only giving you permission to use it in the ways that the platform itself establishes, or any other explicit or implicit permissions that are built into how they are using the material.”

2. Embedding social content is usually protected, but know the owner of the content.

When embedding social media posts on your own news site, Hermes said, the key is that no copy is made. If someone changes the content of the embed or deletes it, those changes are reflected on the embedded content.

However, in a noteworthy case, Goldman v. Breitbart News Network, LLC (S.D.N.Y. Feb. 15, 2018), the content creator posted an image to Snapchat, and that image was taken and posted to Twitter, where several news organizations, including The Boston Globe, Time, and Vox, embedded the content. Goldman, the photographer, sued the publishers for enabling the display of content in a way the creator did not approve of when it was posted to Snapchat.

“Now keep in mind Goldman didn’t put this on Twitter. He never implicitly or explicitly intended other people embed from Twitter because he was not the Twitter user, so these publishers cannot rely on that implied permission,” Hermes said. “The court says … the right to control the making of copies under the Copyright Act and the right to control display under the Copyright Act are two different things. So if you’re embedding in a situation where you don’t have either the implicit or explicit permission from the creator of the photo to embed, you might still violate that right.”

3. Consider fair use when copying or embedding content from social media.

If a news organization is reporting on events or comments that occur on social media — such as community reactions or public officials’ statements — Hermes said there is a strong argument that the content can be categorized as fair use.

“Often … news organizations, in that case, will try to double protect themselves … by embedding the tweets, so not only do they have the fair use argument because they need to refer to that interaction, but they’re also embedding to avoid copying,” he said.

When it comes to permanently capturing a newsworthy social media post, such as taking a screen grab of a mayor’s controversial tweet that is at risk of future deletion, copying can be an option for news organizations.

“That’s a fair argument for why you may want to make a copy as opposed to embedding it,” Hermes said. “There it’s necessary to make a copy, under the fair use argument, because you need to preserve a copy of what a public official is doing.”

About MLRC:

The Media Law Resource Center (MLRC) is a non-profit membership association for content providers in all media, and for their defense lawyers, providing a wide range of resources on media and content law and policy issues. These include news and analysis of legal, legislative and regulatory developments; litigation resources and practice guides; and national and international media law conferences and meetings. MLRC also works with its membership to respond to legislative and policy proposals, and speaks to the press and public on media law and First Amendment issues.

MLRC was founded in 1980 by leading American publishers and broadcasters to assist in defending and protecting free press rights under the First Amendment. Today MLRC is supported by over 115 members, including leading publishers, broadcasters, cable programmers, internet operations, media and professional trade associations, and media insurance professionals, in America and around the world. The MLRC’s Defense Counsel Section includes more than 200 law firms worldwide that specialize in media defense representation.

More about Jeff Hermes:

Prior to joining the Media Law Resource Center, Jeff served as the Director of the Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, where he led multiple initiatives to provide free legal resources in response to the needs of independent journalists and online media ventures. Prior to joining the Berkman Center, Jeff assisted a wide array of clients in First Amendment, media, intellectual property and Internet law issues as a partner in the litigation practice of Brown Rudnick LLP and later as counsel to Hermes, Netburn, O’Connor & Spearing, P.C. in Boston. Jeff has represented an international media network and its subsidiaries, major metropolitan newspapers, broadcasters on television and radio, Internet-based publishers and social media networks. He has frequently been interviewed by national and international press outlets, written for numerous publications, spoken at a wide array of events, and been invited to international forums to discuss digital media law issues. Jeff received his J.D. degree from Harvard Law School, and received his undergraduate degree, summa cum laude, from Princeton University.

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