Social Media and Fair Use in Scholarly Publishing

Catherine Cocks's picture

A guest post from Feeding the Elephant: A Forum for Scholarly Communications.

Guest post by Elisabeth S. Maselli, Senior Editor at the University of Pennsylvania Press

When the Elephant offered advice on seeking permissions in 2020, we said that “no one has figured out the copyright status of social media posts yet.” Happily, that’s no longer completely true! The AUPresses Intellectual Property and Copyright Committee issued guidelines in 2022. In this post, committee member Elisabeth Maselli offers an overview.

Can a screenshot of a Twitter interaction be an epigraph? What permissions are needed to reproduce a Facebook post in a book? How about using the Facebook or Instagram “like” buttons—a thumbs up and a heart shape, respectively—in a cover design? These are scenarios that rights managers come across in their day-to-day work as social media content becomes an increasingly important archive, research site, and image gallery for authors. But while 4.76 billion adults—representing almost 60% of the world population—use social media, copyright law in the United States has not yet tried cases that would determine how such content can be used in a secondary source.

And ethics of reproduction in these cases is murky—further legal definition may or may not make it clear if it is right to use, for example, a screenshot from a third party’s YouTube video without explicit permission. Further confusing things, many academic fields and individual publishers set a higher standard than copyright law for permissions documentation, often preferring explicit permission in writing to reproduce third-party material in general and particularly across social media sources.

Because this is an emerging area in publishing practice, the Intellectual Property and Copyright Committee of the Association of University Presses (AUPresses) built a guide of best practices for social media reproduction, based on our understanding of fair use in the United States. While a work in progress (future versions might look at case law in different countries or add platforms in addition to Meta and Twitter), the best practices are a starting point for determining how to use third-party social content in a published book or article.

We are not attorneys, however, and this post should not be read as legal advice! If you’re in doubt about publishing specific content, please consult an attorney. And if you’re working with a publisher, ask your editor about their press’s permissions policy.

To help publishers and authors evaluate when they might use content without seeking permission from the original poster, we advise reviewing the four tenets of fair use:

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  2. Nature of the copyrighted work
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. Effect of the use upon the potential market for or value of the copyrighted work

Tenet one is, happily, usually an easy one for non-profit AUPresses members to use in a fair use case. University press authors generally use third-party sources educationally, and their analysis usually qualifies as transformative (they add something new, with a further purpose or different character than the original) and as educational.

Unfortunately, most rights managers wouldn’t build a case for fair use on only one tenet—especially when tenet three, when applied to social media, will typically fail to support a fair case. Social media content is closer to a poem or song lyrics than a book or film. For example, a Facebook post is self-contained and an author citing such a post is usually quoting 100% of the amount and substantiality of the copyrighted content. This doesn’t mean that a screenshot (or the disaggregated image or text of a given post) cannot be used, but it does suggest that the content should meet the other fair use tenets to build a fair use case.

Tenet two is more ambiguous. It refers to how creative, original, and interpretive a piece of social media is. A factual tweet points toward using the content under fair use.  Take the @aupresses’ Jan. 31, 2023, tweet, “We're reimagining vendor participation for #AUPresses23! Introducing Vendor Digital Shorts, brief pre-recorded presentations highlighting recent developments of interest to university presses, to be broadcast at the beginning of our virtual sessions,” which presents a statement of fact, and therefore more likely meets the criteria for fair use considerations. 

Tenet four, the effect on the market, can vary widely. Usually, replicating an Instagram post in an academic text won’t cause an account to lose followers. But, if it depicts a standalone image that is for sale as a print on Etsy, publishing it in your book or article can infringe on the market for the piece and wouldn’t qualify for fair use.

So what to do with content that only meets most of the tenets, or just one or two? Because fair use is a vague and interpretive space, the AUPresses best practices builds out some considerations for cases where a fair use case feels like it just isn’t tenable.

Consideration 1: Check the terms of service (ToS) for the social platform in question.

ToS are living documents that are useful for learning how social media understands intellectual property. For example, the Twitter ToS explain that content posted on Twitter is copyright to the user, but the user, by Tweeting, authorizes third parties to link back to any Tweets. This means a university press would not violate an author’s copyright if it featured that author’s Tweets in an RSS feed, so long as users could click on the Tweet to access the author’s Twitter page. 

Consideration 2: Obtain user permission.

Often a user can be reached through a direct message (DM) or by email. While there is a consensus that the words of various public figures (for example, elected representatives) can generally be used under fair use, it doesn’t hurt to send a DM to a quoted account anyway. This gives you a written trail, which is especially useful as user verification is now purchasable and does not reflect how public a given individual might be.

In a case where a user is unreachable (or as is often the case, unfindable), use your discretion. Is the image in question intended to be on the book’s cover, which is a highly marketed element of the book? The general standards for permission to use art on a cover are more strict than for interior image use, where content won’t be marketed in the same way that a cover will be. Is the text source to be used as an epigraph, which isn’t analyzed? Or will it be inserted in-text and analyzed in service of a creative and interpretative—that is, transformative—argument? Here, the second use is more likely to qualify as fair use; epigraphs rarely do.  

Consideration 3: Strip all decorative elements out of text-based social media content and reset as text.

Resetting text puts you in compliance with Twitter and Meta ToS. These companies have trademarked everything from the famous blue Twitter bird to the like button, and using direct replications of these elements in your project can be risky!

Hopefully, this post has introduced the broad range of potential problems that social content presents to authors and publishers, and supplied some actionable solutions towards incorporating this content into books and articles. Important material appears on social media all the time, and authors can and should use it; however, until clear precedent comes down from the legal bench, we’ll keep an eye on this area of rights and permissions and update users as changes arise!

Elisabeth Maselli acquires titles in anthropology, political science, and religion at the University of Pennsylvania Press. She was previously an acquisitions editor and rights manager with Rutgers University Press. You can followe her on Twitter at @e_maselli.

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