The Pantsuit Nation Controversy: Social Media and Rights Issues

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During election season, you may have heard about a secret Facebook group called Pantsuit Nation, a gathering place for Hillary Clinton supporters to celebrate their candidate (and then to commiserate, following her defeat). It was founded by Libby Chamberlain, a private individual, and quickly grew to about 4 million members. Pantsuit Nation members frequently post intensely personal stories or sensitive material they do not want shared outside the group.

Last week, Chamberlain announced she’d landed a book deal based on material shared in the group, which immediately sparked controversy and outrage among some members. We’ll leave you to decide whether the book deal is morally justifiable; what we’d like to explicate are the rights issues involved in such a project, since a question that arises with some frequency among authors is “Can other people’s social media posts be used in one’s published work, either with or without permission?” As with every question of copyright or fair use, the answer is “It depends,” and interpretations of the law vary. But here are a few considerations:

  • Has the material been posted or published publicly (not just to friends or a private group)? For example, public tweets may be picked up and quoted by journalists without permission under fair use, just the same as published work. Some say tweets aren’t copyrightable or protectable under law in the first place, but we’ll leave those arguments to the lawyers. As far as Facebook, while some material published there may be public, much is considered private. The activity at Pantsuit Nation, for example, is deemed private by members—even if shared with a group of 4 million—because the group remains secret (invisible to nonmembers) and because the community guidelines emphasize privacy.
  • What’s the purpose of the work? Using someone’s material for commercial benefit works against you in a fair-use case. Using material for educational purposes is more defensible. Publishers generally ask authors who wish to use others’ social media posts in their books to get explicit permission, both as a matter of courtesy to the original author and to eliminate risk of legal action.
  • Permission is not required from the social media sites. Facebook and Twitter do require some rights from their users in order to be able to publish, distribute, and store content, but they aren’t the rights holders. Users are. However, if you have a complaint about someone abusing your copyright through Facebook or Twitter, you can report the abuse to the social media platform.

There are also right-to-privacy and right-to-publicity issues that may come into play: private individuals have a legal right not to have their personal details spread without permission, and everyone has a right to prevent others from exploiting their name or likeness (e.g., to endorse a product) without permission.

Bottom line: When Chamberlain’s announcement was met with outrage, she (again) clarified to the group and to the media that no material from the Facebook group would be used without explicit permission. That was surely going to be the case all along—as the publisher would have required it—but that didn’t prevent some Pantsuit Nation members from being upset at what they perceived as betrayal and exploitation. Chamberlain has stated that proceeds from the book will benefit a nonprofit foundation she has just established, but it’s unknown if the book contract is with Chamberlain or the nonprofit. The book is due out in May from Flatiron Books (Macmillan); Chamberlain is represented by William Morris Endeavor.

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