Reproducing Controversial Tweet in News Story = Fair Use

An excerpt from Judge Andrew Carter’s opinion Friday in Shaykhoun v. Daily Mail (S.D.N.Y.):

Sonya Shaykhoun (“Plaintiff”) is a licensed New York attorney with 21 years of experience, including expertise in intellectual property licensing, proceeding pro se in this action…. On May 17, 2023, Plaintiff posted a “Tweet” on X.com regarding an unlicensed vendor in Riverside Park ….

Here’s the Tweet, from the Complaint:

Back to the opinion:

The Tweet garnered nearly 7 million views and sparked significant engagement, both negative and positive. Plaintiff made $170.97 from the Tweet through X.com’s monetization program from August 9, 2023 to May 27, 2024. Plaintiff thereafter decided to change her X account from public to private “to protect her safety,” thereby halting any future earnings….

On May 18, 2023, The Daily Beast published an article written by news reporter AJ McDougall, entitled “Lawyer Roasted for Calling 911 on ‘Unlicensed’ Food Vendor in NYC Park” …. The Daily Beast Article partially embedded the Tweet but included a hyperlink to the full, original tweet and did not include the two photographs Plaintiff included in the original Tweet.

On May 19, 2023, the Independent published an article written by Bevan Hurley titled ‘NYC lawyer roasted on Twitter for reporting illegal food stand rails against city’s ‘rapid deterioration. ” The Independent Article embedded the Tweet in the article, with only part of the Tweet’s full text visible, and did not include the two photographs included in the original Tweet.

On May 29, 2023, the Daily Mail also published an article written by Noa Halff titled “New York City lawyer is roasted for calling 911 on two female vendors selling food in Upper West Side park without a permit: ‘Get a life, Karen.’” The Daily Mail article embedded the entire Tweet, including the two photos Plaintiff took and included in the original post.

The Daily Beast Article, The Daily Mail Article and the Independent Article … all generally discuss the controversy generated by the Tweet. The Articles include a reproduction of the Tweet itself, other users’ comments and critiques of the Tweet, Plaintiff’s responses and defense of the Tweet. Plaintiff asked Defendants to retract the articles, but her requests were denied. Plaintiff states the Articles caused cyberbullying, causing her to privatize her X.com account May 24, 2024, halting any continued earnings through X.com’s monetization program and causing loss of clients and job opportunities….

Plaintiff sued, claiming, among other things, that defendants infringed her copyright in the tweets. No, said the court, among other reasons because of fair use. The use was transformative, largely because “‘[u]se of a copyrighted work for a news report, where the copyrighted work is itself the subject of the story, such as a news article about a viral video which displays a clip of that video to illustrate what all the fuss is about usually constitutes fair use’” (quoting Richardson v. Townsquare Media, Inc. (S.D.N.Y. 2025) and “‘When an individual’s decision to disseminate an Instagram post is the very thing the article is reporting on, the use of the … post and its copyrighted material in the reporting has been deemed sufficiently transformative to support a fair use defense’”) (quoting Whiddon v. Buzzfeed, Inc. (S.D.N.Y. 2022)). And though the defendants copied most or all of the plaintiff’s work, “In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work without alteration.” Swatch Grp. Mgmt. Servs. Ltd. V. Bloomberg L.P. (2d Cir. 2014):

The necessity of the inclusion of the whole work is often based on the transformative use and “altered purpose or context of the work, as evidenced by surrounding commentary or criticism.” Such is the case here. The Daily Beast Defendants and the Independent Defendants did not embed the entirety of the Tweet in their Articles. While the Daily Mail Defendants did include the entirety of the Tweet, such inclusion is appropriate to “provide the full context of the controversy.” Whiddon. Indeed, “[r]educing the amount of the original work would have provided an incomplete description of the controversy, or even misrepresented the Post.” …

The opinion seems quite correct to me, and it makes me question the Twitter account title, “The Commercially Savvy Lawyer.”

Thomas Byrne Sullivan and Saumya Kelkar Vaishampayan (Ballard Spahr LLP) represent defendants.

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