Social Media, Fair Use, and Virality

Let’s say you are hired to photograph a wedding. It’s a standard beach wedding, and when the bride goes to throw the bouquet, it’s snatched out of the air by a passing seagull. You (miraculously) capture the perfect shot: the seagull swooping away, the bride dismayed, the bridesmaids dying of laughter. You post it on your instagram.

It gets memed and goes viral. Somebody takes the picture and adds just a few words - the bride, dismayed, is labeled “me,” the bridesmaids are “my savings account,” and the seagull is “spending $300 on cheese at Whole Foods.” Others remix the image. “Me,” “my plans for a healthy diet,” “friends asking for mcnuggets.” “The US government,” “education and infrastructure,” “military spending.” The list goes on. The picture has been copied and reposted so many times that you couldn’t possibly send each and every person a cease-and-desist letter. Worse, the clients who hired you to take the picture are unhappy - they definitely did not sign up for memetic fame, and it never occurred to them that you might post pics from their wedding on your instagram.

Where do you stand legally? Do you have a claim against any of the people who have reblogged and memed your photo? Even if you did, how could you practicably send notices to each and every one of them? And does your client have a claim against you for accidentally allowing her wedding to go viral?

To understand the answer to the first question, we must understand the concept of fair use. Fair use is a legal doctrine that says, in essence, that we can legally use other people’s copyrighted works for our own artistic expression in some circumstances - when the use is fair. What constitutes “fair” is a tricky determination that a judge will make based on four factors: whether the use is intended to make money, what kind of work was used and how much of it, and whether the use affects the market for the copyrighted work. Courts have long said that the key factor in this determination is whether the new use “transforms” the old work in some way. 

When people repost your memed picture, they are in some way “transforming” it. Your picture was about a wedding on a beach and a spontaneous moment that made your client’s night more interesting. The meme is about any number of things - our inability to put money into savings, the US government’s love for military spending, my love for eating shredded cheese out of the bag at 3AM. The meme simply uses the basic image as a structuring format to make a statement that could, quite literally, be about anything.

The other factors lean towards fair use also. People who meme your picture generally are not doing it for money - although certainly the minute someone starts turning that meme into postcards and t-shirts, you may have a claim. Reposters may have taken the entire picture, but they’ve left behind its core meaning - your client at her wedding - and made the image about something else entirely. And the virality of this meme isn’t likely to affect the market for your original picture (since you only intended it to be sold or licensed to your client) or your services as a wedding photographer (in fact, it may be free advertising for you - it is a good picture, after all). If you bring a claim against a reposter and they claim fair use, a court would probably see that your economic position was not threatened, and so it would lean towards the reposter.

And last, what about your client? Does she have a claim against the reposters? Probably not - she doesn’t own the copyright to the image, and while she may have some rights to her likeness, those rights are strongest when they involve commercial fame and a person’s ability to draw money from that fame. The client isn’t famous, and so the meme really has nothing to do with her, her likeness, or her identity. She’s just a random bride whose bouquet was snatched by a seagull..

But more importantly, does she have a claim against you? That depends entirely on your contract and the statements you made to her when negotiating that contract. Does your contract contain provisions allowing you to use the photos for advertising and portfolio purposes? If so, you may be protected from a claim by her. Does it contain a model release clause, releasing you from claims based on right of likeness? If so, this strengthens your protection. But even if you have none of these things, you likely own the copyright to your work, and, as explained above, rights of likeness are strongest when they concern celebrity and commercial fame, and your client isn’t famous. And even if she was, it’s not you who is capitalizing on the viral photo.

If you’re ever concerned about the legal consequences of virality or posting your work to social media, talk to an attorney to learn more about how legal rights attach and when they can be pursued, and definitely talk to an attorney if you’re worried that your standard contract isn’t up to snuff.