PetaPixel

Newspaper Agrees to Pay Woman $400 After Sparking Debate Over Fair Use

The Portland Press Herald has agreed to fork over $400 to a woman named Audrey Ann Slade after its use of one of Slade’s photos sparked a furious fair use debate online. The paper published a story last week about Reverend Robert Carlson, a minister who committed suicide recently after being accused of abusing young boys. Specifically, the piece reported on the fact that Slade’s photos proved that Carlson continued to engage in on-campus events after resigning abruptly in 2006 from his position as chaplain.

It decided to publish one of Slade’s photographs — both online and in print — showing Carlson at a 2010 ceremony held on campus grounds. Problem was, they badly mishandled the process, and neither contacted Slade nor attributed the photos to her.

When Slade came across the article, she was startled to see that her image was being used. She then sent the following email to the higher-ups at the newspaper:

Good afternoon,

My name is Audrey Slade, and I am the “former administrative assistant” described in this article.

http://www.pressherald.com/news/husson-let-chaplain-join-events-after-he-quit_2012-08-07.html

I write to you with a lot of very mixed feelings. Imagine my surprise when I saw this article posted on Facebook, with a photo that I had taken several years ago. Then to read the article and see that my photos were being alluded to as evidence of Bob Carlson’s involvement in activities at Husson after 2006. Then to further see that my title was being associated with this.

And my ultimate shock that I was not contacted at all about any of the above. No contact at all. Aside from the disappointment of having my intellectual property being used without even so much as an indication that it was going to be lifted from my flickr accounts, it was also unethical to use these photos without either giving me the benefit of at least asking me if they could be used or asking if I wanted credit for my photos that you used without my permission. (I do not.)

At my core, I am so disappointed. I would respectfully request that you remove my photos and any indication of my title from the article. While there might be plenty of legal loopholes that make this article acceptable, ethically, it was handled rather poorly and has left me with quite a bad taste in my mouth.

Regards,
Audrey Slade

After a day passed with no response, she sent a followup email:

Good morning,

Please see my email below from yesterday. Having gotten no response from anyone and seeing my photo is still up, I have consulted with members of the print, radio, and television media for guidance. The overwhelming response has been that since my photo has been listed on flickr as “All Rights Reserved”, the photo was taken by me, and I was not compensated by Husson for taking the photos, The Portland Press Herald did not have the right to use my photo without my consent. And even with the legality of it put aside, the ethically, it was in poor form and taste to use my photo without my consent. And especially unethical since you managed to refer to me as an individual through my title and based a good portion of your article on my photographs.

Where my photos are listed as all rights reserved, were taken by myself as an individual and NOT as a Husson Employee, and I was never compensated by Husson for them. I am demanding that the photo be taken down and no use of any of my other photos may be used in the future. For every day that they are not taken down (today included), I will be invoicing Portland Press Herald $100 a day.

Audrey Slade

Finally, after a couple more days of silence, she received the following response:

Dear Ms. Slade,
I apologize for the delay in getting back to you. I’ve read your emails regarding the photo that accompanied our story about Rev. Bob Carlson’s activities at Husson and wanted to explain our position to you.

Two factors played in our decision to use your photo: (1) We could not, by deadline, determine who the photo belonged to, and (2) we ultimately decided it was in the public’s interest to publish them. The story was, in essence, about the evidence that Rev. Carlson was still partaking in Husson activities for years after supposedly being told he was no longer welcome. Our publication of the photos constituted fair use of them. Moreover, they were on a public site (Flickr), available for anyone to view, with no obvious indication of ownership. Our staff did attempt to find out who took the photos before we ran them, but there was no contact information for the account holder on the Flickr page.
Again, I’m sorry it took us a few days to respond (it’s been a hectic week here), but I did want to convey our thinking to you.

Best,
Steve

Infuriated by the way the newspaper handled the situation (and its subsequent response), Slade penned a length blog post titled “Sure, it’s fair. But is it right?“, giving her account of what happened.

The post quickly went viral, and before long fellow photographers around the world were siding with Slade, bashing the Press Herald, and suggesting that she sue them.

On Reddit, where Slade’s blog post amassed over 600 upvotes and 100 comments, legions of commenters responded with comments about how the newspaper doesn’t understand what fair use is.

Although the whole story doesn’t sit well with photographers (understandable, given how mishandled the whole thing was), the whole thing might actually be a textbook example of what fair use is.

People around the web were stating that “fair use doesn’t mean you can use copyrighted photos without permission”, but that’s exactly what fair use law says. Here’s the definition found on Wikipedia:

In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test.

In this case, the news being reported was the fact that there was evidence showing Rev. Carlson present on campus after he resigned. The evidence was in the form of Slade’s copyrighted Flickr photographs. They were illustrating a story in which her specific photos played a central and critical part, rather than a story about something else to which the photos just added a little flavor.

Thus, it seems to me that the newspaper did indeed have the right to report their story based on around Slade’s images, even without contacting her or compensating her.

Please don’t get me wrong — I can see the hate comments coming in already — I’m all for siding with photographers and reporting on copyright violations. In fact, we were privately dealing with defamation lawsuit threats a little while back for reporting on one such case. It’s just that this one is a bit different, and merits some thoughtful dialogue rather than senseless bashing.

In any case, please do drop by Slade’s blog and Flickr account, and show her some love!


P.S. Poytner has published a great non-biased look at the dispute that examines both sides of the issue.


Thanks for sending in the tip, Ellie!


 
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  • disqus_Kocjm9SFAd

    how can they say “1) We could not, by deadline, determine who the photo belonged to” if it is on a person’s flickr page? That seems unscrupulous, ignorant and/or just plain incompetent.

  • http://www.petapixel.com Michael Zhang

    Right, as I said, the whole thing reeks of incompetence and mismanagement rather than copyright infringement. :-)

  • seriesrover2

    In the accompanying link [above] it says that the name on the flickr page did not match the person (paraphrasing here).

  • ennuipoet

    Was it Fair Use according to the “letter” of the law, maybe. It certainly violated the spirit of the law. Anyone who can find the photo on Flickr can certainly figure out how to message the owner, but they admit they didn’t do that. It’s pretty clear they needed a photo and took a calculated risk to run it without permission, and were caught. Whatever their rationale behind the move, the paper was wrong. I am also willing to bet if one of their photographs was used without permission and compensation the paper would act to have it removed and protect their copyright, so why shouldn’t this photographer do the same?

  • disqus_Kocjm9SFAd

    + “they were on a public site (Flickr), available for anyone to view, with no obvious indication of ownership” ?? every flickr photo has some of copyright designation (creative commons, etc)…this is not public domain, there is a service agreement between flickr & the user, it’s not a free stock photo site.

  • http://www.facebook.com/david.tribby David Tribby

    all they would have to do would be send her a message on Flickr mail and get all her contact info, or click on her profile link to her blog and message her there.
    “(1) We could not, by deadline, determine who the photo belonged to” – complete bull$hit.

  • http://www.facebook.com/mattpayne11 Matt Payne

    What a complete lack of respect and professionalism by the paper. The photorapher in tihs case handled it well, in my opinion. The media does not have carte blanche rights to use whatever photos they can find, I don’t think that is the spirit of the fair use law here.

  • sharpie

    “Fair Use according to the ‘letter’ of the law” – exactly. No further explanation required. This was a clear cut example of where Fair Use can and should be used. She should not have been paid a cent. An accreditation was all that was required. (I am a photographer).

  • kirsty

    absolute rubbish, how can they say they didn’t know who the owner of the photo was? Its a flickr account !! Email the account holder – the person who uploaded the damn photo. This is an absolute joke. And for the record Flickr is not a public free-for all. it is a copyrighted website where the owner determines the license of their pictures. If flickr was a free service no photographer would use it to show their work. I’m sorry but this is obvious, there is no debate here on the subject. They were clearly being lazy and have no excuse. Extremely disappointing, Im sick to death of photographers work being stolen by people.

  • http://www.richardsnotes.org Richard

    This is a fascinating case and I have to say Michael, your reporting is the most level headed I’ve read about it. Thanks.

  • Chris

    I agree with PetaPixel’s analysis that — while it would have been nice and polite to attribute fully and ask for permission — it’s within both the letter and the spirit of fair use to publish photos like these for the purpose of serious news reporting regardless of permission. (I’m a heavy Flickr uploader too, not just someone who thinks newspapers are always right.)

  • RoryW

    The newspaper says that it couldnt contact her in time yet the Flickr profile includes both her name and email address (unless these are recent additions to her profile)

  • Mansgame

    The Olympics were on my TV too and everybody could see them, but I couldn’t just post video of it on my website could I?

  • http://twitter.com/jadefrog01 jadefrog01

    Howdy! Audrey Slade here. :)

    I think this whole thing has been FASCINATING. Truly. What cracks me up, though, is that I never asked to get into a debate about Fair Use. Even the title of my blog indicates that it might be Fair, but was it Right? And beyond that, my biggest problem was how it was handled. When they included my title, my department, and even my boss’s name and then tried to say that it was impossible to contact me…well…that didn’t sit well.

    That being said, I think the subsequent conversation that it has sparked has been really interesting and important. And had I known it was going to go viral, I probably would have explained the Bob Carlson case, rather than just assume everyone who would read my post would be in Maine and would know what I was talking about.

    Thanks for keeping the discussion going and for caring about this little saga of mine. :)

  • ennuipoet

    Because it is legal doesn’t necessarily make it ethical. There is no evidence the paper tried to contact her to obtain permission. The paper actually admits they did not message her via the very same medium where they found the photos. Yes, there were would be no story if not for the photos, but I believe that makes it MORE important to contact the rights holder not less. I think the paper did the right thing in paying her for their use, something they could have avoided if they had done the right thing from the start. At least a message via Flickr before going to press shows they tried, even if they made the decision to run them without hearing from her.

  • ennuipoet

    It is important we talk about this, one for a greater understanding of what Fair Use is and why we as photographers need to protect our intellectual property. FWIW, I think you responded in a rational and balanced way and deserve a lot of credit for making us all look professional. Good job!

  • seriesrover2

    I do tend to agree. The key thing that makes it “fair use and within the spirit of the law”, for me at least, is because the existence of the photograph is itself supporting the news item.

    If the photograph was used to make money directly (one could argue indirectly they’re using it sell the paper, but thats a rather flimsy argument), or to avoid paying money then that would of course be quite different.

  • Jon

    The article is based around the photos! They weren’t added in afterwards at the last second. There was enough time between finding the photos and hitting the deadline to write the article, I think that’s enough time to send an email.

  • John R

    So if I find an interesting topic to write about as a freelancer based on a photo I find on the newspaper’s website they’re OK with me re-publishing it without their permission?

  • JC Dill

    I strongly disagree with your assessment that this is fair use.

    If I happen to take the only photo of a singular, important event, that photo becomes priceless. According to your “fair use” conclusion, it immediately becomes worthless because media outlets now have the “right” to use my photo without my permission, compensation, or even credit, because it is an integral part of the story being reported? I. Don’t. Think. So.

    Examples – the photos of a famous person’s newborn baby. Those first photos sell for a LOT of money. If the photographer happens to drop their memory card on the way to the car, you can’t just take the card and publish the photos, with no permission, no credit, no compensation. That. Is. Theft. Right?

    The fair use exemption for commentary is for commentary ON the artwork, not for using the artwork as part of a broader story. Even if the artwork shows an important part of the broader story, it’s still protected, you still need to get permission. And their excuse that they couldn’t determine who the owner was because it was on a large public website? BS. Every photo on Flickr is clearly identified with the owner’s username, with the ability to send them email thru Flickr.

  • Per-BKWine

    This article seems to contain factual errors as well as a misunderstanding of “fair use”. With your reasoning most serious news reporting photography could be used without permission as “fair use”.

  • Mae

    The paper’s argument that they were unable to determine ownership of the photos before deadline is absurd. Each photo posted on Flickr is attached to a specific account. How hard would it have been to message her via that account? Not hard at all. In fact, it would have taken them all of three minutes. I am sick and tired of the argument that “it’s posted on a public site so it’s ours to use”. That is bogus and counter-intuitive.

    I think one of the most important factors to consider when determining fair use is whether the use is for commercial or “nonprofit educational purposes” (this is a distinction made by the statute itself). In this case, the use was clearly commercial.

  • Alan Dove

    You handled this beautifully, Audrey, and your ethical/legal distinction is the crux of the matter. The paper may or may not be guilty of theft. It is unquestionably guilty of bad journalism.

    I’m a journalist, so I deal with copyright issues all the time. Legally, I think the paper was right on the edge of what fair use allows for images (the Wikipedia quote above is talking about text). This case would have to go to court to figure out the answer, despite what the armchair attorneys online are saying. I suspect the paper paid up because their house counsel told them they were on thin ice. Yes, the image does appear to be evidence in a story, and they’re citing the evidence rather than using the photo for standard editorial illustration. However, they utterly failed at due diligence here.

    Even if your Flickr account doesn’t link directly to your email, they obviously knew who you were, even down to your title at your former place of employment. They should’ve been able to find you with a few phone calls. If they really couldn’t, then the correct choice would have been to run the story without the picture. They could cite it as “a photograph published online by a former administrative assistant shows Carlson…” or even “a photograph obtained by the Press Herald shows…”

    Of course an even quicker way to find you might have been to Google your Flickr user name, which I see is identical to your Twitter handle.

  • modernyeti

    You are absolutely wrong, as is the author of this article. It wasn’t fair use under the letter OR spirit of the doctrine. it was outright theft of an image, unpaid and uncredited. it seems a lot of people here aren’t understanding that, including the writer of the article, who quotes (from wikipedia, mind you, not the US Copyright office) a passage taken out of context, then proceeds to make a logical leap that shows a fundamental misunderstanding of the text. As you claim to be a photographer, you should really become more familiar with what constitutes fair use, considering you’d never be paid for any works of photography under your (incorrect) definition of it.

  • http://twitter.com/Theranthrope Theranthrope

    …while the comments here, unfortunately, are not.

    There’s a lot of (pretend) internet lawyers getting awful indignant about the situation, while showing how LITTLE they really understand copyright. It would nice if I could expect better from photographers, who live-and-die by copyright, in understanding copyright’s limitations in regards to fair use.

  • http://twitter.com/Theranthrope Theranthrope

    Yes you can; if it’s the work including the Olympic footage is transformative: as part of commentary and criticism, or parody.

    These are basic-level fair use questions. How can you not know this?

  • http://www.richardsnotes.org Richard

    Agreed. Although to be fair, Michael sometimes frames these things in a way that gets the professional victims worked up. In other words, some posts look like “comment bait” to me anyway.

  • http://twitter.com/Theranthrope Theranthrope

    Fair use isn’t what you want it to be, or think it SHOULD be, copyright laws, in the way they are written and in the way they are enforced are actually: anti-intuitive. In this case, the Portland Press Herald use of Ms. Slade’s copyrighted image is wholly within fair-use because it’s use is as part of news commentary of Reverend Robert Carlson. The Herald could have (actually, should have) asked permission, been refused, and still could have run the image, while not running afoul of copyright.
    This issue here is not so much about copyright, so much as it’s about Portland Press Herald’s remarkable un-professionalism in not providing proper attribution, compounded by their staggering arrogance (or ignorance) when Ms. Slade tried to contact them.
    Personally, I think the story’s writer, editor, and chief-editor should be named-and-shamed for their bad behavior in this incident.

  • val escobar

    yet he sided the rambling excuse of the newspaper. Im not a pro by any stretch of the imagination, I I would just like to think, my posted work can be used by anyone under theses circumstances. Again, fair, not right…

  • http://www.richardsnotes.org Richard

    I didn’t take it that anyone sided with anyone, just that the case isn’t as clear cut as many seem to think it is. Few cases are but things tend to get reduced (telephoned?) as stories get told and retold and it was nice to read this particular post which seemed a bit more level headed than others I was reading when this was news.

  • Fred Fnord

    Er… so I notice that you mention that there’s a four-factor test, but then you didn’t bother to actually talk about those factors at all. Your assertion that this is obviously fair use is absolute baloney: this case could keep a half dozen lawyers happy for years. And you criticize people who aren’t lawyers for holding an opinion on it, and then publish your own opinions as if they were fact.

    I hope you realize that this actually does make you a bad person.

  • Charles Mason

    Aren’t you doing exactly the same thing by posting this comment?