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Game, set, match: Sometimes the photo is the story

Mike Nepple November 6, 2020

A news organization can fairly use a copyrighted photo from an Instagram post when the social media post is itself a key element of the news, according to a ruling in a case involving tennis star Caroline Wozniacki.

The decision is the latest to analyze copyright claims arising when a social media post containing a copyrighted photo is “embedded” in another website. “Embedding” means that an image hosted on the original social media site or server is electronically linked to a new website, such as that of a news organization, where it is then displayed.

Wozniacki announced her retirement via an Instagram post, in which she included a 2002 photo from one of her first professional matches, when she was still in her teens. Long Island Tennis Magazine embedded Wozniacki’s post in its website story about her retirement. The professional photographer who took the photo, Michael Barrett Boesen, sued the magazine for copyright infringement in Boesen v. United Sports Publications.

Image Source: Court Opinion (Click for larger version)

In her analysis, Judge Allyne Ross of the Southern District of New York found that the story “did not use plaintiff’s photograph ‘as a generic image’ of Wozniacki, nor to depict her playing tennis at a young age,” but rather “reported on Wozniacki’s retirement announcement and the fact that it took place on Instagram.” The Court noted that in an earlier Southern District decision, Walsh v. Townsquare Media, the media’s use of a social medial photo was determined to be appropriate when the social media post was “the very thing the Article was reporting on.”

Judge Ross decided that the tennis magazine’s website use of the copyrighted photo, containing the embedded Instagram post, was similarly a fair use because Wozniacki’s post, which included the photo, was itself the story – it was how she chose to announce her retirement. After determining that the other traditional fair use factors also favored the magazine, the Court dismissed Boesen’s lawsuit.

This case tells us that a fair use defense is often viable where the post or the photo is the story. Or, as the kids might say these days, where it is what it is.

Mike Nepple is a partner in Thompson Coburn's Intellectual Property practice group.