PetaPixel

Newspaper Editor Says Posting a Photo to Facebook Makes it Public Domain

Normally, we wouldn’t give much attention to the thoughts of an editor/publisher for a small community newspaper. But the response to photographer Kristen Pierson‘s notice of copyright infringement and invoice for payment is such a classic compendium of bad thinking on intellectual property that it would be a disservice not to share it … just so you know what you’re up against.

The incident began when the New England paper (sample headline: Two New Restaurants Coming to Mall) reprinted one of Pierson’s photos to accompany a story on a local singer, credited simply as “submitted photo.” Pierson, who specializes in photographing musicians, told the newspaper the photo was hers and they needed to pay to print it.

The newspaper’s publisher declined in a telephone message (captured via YouTube video) that illustrates several common strands of copyright cluelessness:

He begins by noting that somebody emailed the photo to the newspaper, so technically they didn’t take it, it was given to them. Never mind that the person who sent in the photo wasn’t the photographer. Additionally, he made sure to point out that the image ran with Pierson’s watermark, “so it is credited to you.”

But the whopper comes at the end of the editor’s phone message: “Also, the photograph is in the public domain in the sense that it’s on Facebook, so I don’t know. Maybe you ought to charge Facebook.”

Now there’s an idea! Given that Facebook’s market value is somewhere north of $100 billion, El Dorado awaits the lawyer who can get that theory to fly.


 
 
  • Tony Sleep

    FB deliberately hide it but here is the global delete-the-lot link. It should delete all a/c content, at least that’s what they say, but crucially anything that has been shared remains shared, it doesn’t vanish.
    https://www.facebook.com/help/delete_account

  • rox0r

    Statutory Damages for copyright infringement is no less than $750. If you can prove willful infringement, which might not be hard since it was watermarked and the editor made such stupid arguments, you can get damages up to $150,000 per infringement.

    The Facebook ToS is an agreement between the photographer and Facebook. The editor had no such agreement with the photographer. This is no different than any other contract in the world that is between two other parties. Netflix having an agreement with movie studios to distribute their films doesn’t magically make all of those films public domain — you have to be party to the contract!

    See below:

    17 USC § 504 – Remedies for infringement: Damages and profits
    (c)
    Statutory Damages.—

    (1)
    Except as provided by clause (2) of
    this subsection, the copyright owner may elect, at any time before final
    judgment is rendered, to recover, instead of actual damages and
    profits, an award of statutory damages for all infringements involved in
    the action, with respect to any one work, for which any one infringer
    is liable individually, or for which any two or more infringers are
    liable jointly and severally, in a sum of not less than $750 or more
    than $30,000 as the court considers just. For the purposes of this
    subsection, all the parts of a compilation or derivative work constitute
    one work.

  • rox0r

    That’s not how copyright works. Facebook’s ToS is between you and facebook, not you and the entire world.

  • rox0r

    Not true. If the copyright isn’t proven to be willful, there is still a class of statutory damages (starting at $750). If the rights holder can prove willful infringement the statutory damage is capped at $150,000.

  • http://www.negativespacelondon.com/ NegativeSpace

    I cant believe there are so many people working in the Photographic/media/publishing industries who do not understand the basics of the laws that govern them.

  • K

    Yeah the right click thing is easy to get around, just look at the page source code and you can find the path to the image. It is a bit of a deterrent though.

  • CoreyB

    This seems to be something that comes up a lot, I figured I’d say this, turn your public option off for your photos. Leave it to friends only and not friends of friends, I used to do event photography and ran into this problem once, after I did that it didn’t happen again.

  • BrokenPencil

    Keep believing that. My hands are washed clean of this. We’ve seen too many cases lost because photos were posted to facebook and sites like them, and none lost with work taken from personal sites etc. Flickr was one of those sites and they eventually changed their tos when people started leaving them.

  • BrokenPencil

    Like i said already. Believe what you want. Show me one case where the uploader wins after having their photos taken from facebook.

  • BrokenPencil

    Show the case files. They are public so post the link. Thank you

  • trotty

    Michael H is correct. Public domain means copyright does not exist – displaying work in public does not make it public domain. I don’t understand why even newspaper editors cannot grasp this simple concept.

  • trotty

    Any judge who takes that view of copyright law probably also thinks a woman who has been raped was asking for it, because she walked about in a short skirt.

  • Michael Blitch

    Because people steal the content often and do not get punished does not change the fact that it is illegal. No site has the right to release anything into the public domain. There are often contests and hosting sites that do a ‘rights grab’ in that they pretty much allow themselves to sell, publish, or do whatever with the content, but that doesn’t make the content public domain.

  • Michael Blitch

    You don’t know what you are reading. That does allow FB to sub-license it, IF they wanted to, but that agreement is between the user and FB. It doesn’t allow a third party that is not part of the contract the ability to do anything. FB could in theory license it, but they have not ever do so outside of their services (such as to display ads or ‘sponsored’ stories.

    The copyright holder cannot change, and you using that kind of phrase demonstrates that you do not at all understand what you think you do. A license is not a transfer of ownership. You can loan me your car, but that doesn’t then give me the right to sell it or take it out of the country or go on long trips if you did not authorize that.

    Removing the watermark is a DMCA issue, not a copyright issue. If the watermark were remove or cropped out, then there are additional damages, but the underlying copyright claim remains.

  • Michael Blitch

    FB has yet to license anything to third parties. They use the license to allow for automated ads and sponsored stories. There hasn’t been a single instance where FB licensed the content of a user to a third part for use outside of FB. Their TOS states that once the user deletes the content (e.g. removes the photo) then the license FB has to that content ends. They couldn’t do that if they allowed others to use it in places outside their control.

    You’re coming up with a ‘movie plot’ level worst case, but I will pay you $50 if you can find a single instance where FB has taken content from a user (without compensating them) and allowed a third party to use the content outside of FBs servers.

  • Michael Blitch

    The bill is an offer to settle a claim before going to litigation. It is saying “here is a fair market assessment of the content, please pay”. If it is refused then you step up the enforcement, but it does work.

  • Matt Wallach

    That publisher is clueless, or thinks the photographer is.

  • BrokenPencil

    To you and Michael underneath.

    Are we talking about posting in a window or art gallery? No we aren’t
    get your head out of your ass children. What we are talking about is posting
    work to facebook, and the act of posting to facebook releases your
    rights to them and who ever else they choose. Like i said show me one
    case where the uploader to facebook won the case? One.. I’m waiting, and I;m not talking about a case where the user took off the watermark etc. I’m talking about where they used a photo from facebook and got sued and lost because they didn’t ask for permission.
    That’s what i thought. Move on shill and stop defending a corporation
    that doesn’t care about your right.

    Anyhow last from me.. Like i said post away to facebook they love your free work. Idiots

  • Name First

    Why are u using fb?

  • Adam Gasson

    Sorry Michael but you’re wrong, there is scope for criminal infringement of copyright in US law “for purposes of commercial advantage” (amongst other infringements). It’s contained under Title 18 – Crimes and Criminal Procedure.

    You could easily argue that the newspaper has gained commercially. The image will draw more readers to the page (many studies show that images on a page result in more page views) which results in better ad revenues. By not paying for images it also puts them at a commercial advantage over competitors who do pay for images.

    I don’t understand your comment about “The newspaper (nor really anyone, for that matter) is required to ask who the copyright holder is”. You seem to be saying that because tracking down the rights holder of an image is “impractical” then no-one should bother. It’s really quite simple, if you don’t know who owns the image or you’re not sure then don’t use the image. The United States already has measures set up in the form of the Copyright Office.

    Regarding the bake sale image, yes the editor should ask if they have permission to use the image. Yes it should be from the copyright holder and yes they should have a licence. These are all pretty basic teachings in photography. These are all matters I’ve dealt with both as a photographer and working on a picture desk at a national press agency. Even if we were given a image to syndicate through a business or organisation we’d still track down the photographer to confirm usage (unless there was a clear licence from the photographer in place that allowed syndication).

    A lack of standardised form is not a reason to bypass copyright laws in my opinion (although, as mentioned, there is the US Copyright Office where works can be registered).

  • Matt Wallach

    @BrokenPencil
    Just because an image is displayed publically, does not put said image into public domain no matter what anyone’s TOS says. They are merely allowed to publish the image, as displaying it on the internet through their servers is considered
    publishing.

  • Ed Lefkowicz

    Not to pick on poor Rhode Island, but I lived there for 13 years, so this editor’s response doesn’t entirely surprise me. I am dismayed, though, that a publisher would ignore copyright law so blatantly. I’d suggest a hefty invoice, followed by the threat of a lawsuit.

  • Scott B.

    This is the most important recent case law involving social media and copyright law: Agence France Presse v. Morel, U.S. District Court for the Southern District of New York, No. 10-02730.

    Google it.

    To summarize, Daniel Morel, a photojournalist represented by Corbis Images, posted 8 photos he shot in the wake of the 2010 earthquake in Haiti to his Twitter account. Agence France-Presse discovered them and distributed them to Getty Images. The Washington Post, who subscribes to Getty, published four of the photographs. AFP, Getty and the Post were named in the subsequent lawsuit by Morel over copyright infringement. The plaintiffs made the same (tired and faulty) argument that Morel automatically granted them a license to distribute and publish the photos by posting them on Twitter.

    However, the court found that AFP and the Post were directly liable for copyright infringement. In their ruling, they said that Twitter’s TOS applies only to Twitter partners and sublicensees (which none of the plaintiffs were). Nothing in the TOS, concluded the court, granted AFP the right to remove images from Twitter and subsequently license them to third parties.

    Here is a link to the case on a legal website:

    http://www.martindale.com/internet-e-commerce/article_Lerman-Senter-PLLC_1686800.htm

    Here is a link to an article that explains the case and its implications:

    http://www.digitaltrends.com/social-media/afp-loses-lawsuit-over-twitter-photos/

    And here is a link to the case itself:

    http://assets.sbnation.com/assets/2020427/morel_afp_opinion.pdf

    Here is a link to an article on Bloomberg Law expanding the copyright issues to all social media:

    http://about.bloomberglaw.com/practitioner-contributions/social-media-and-fair-use-pinterest-as-a-case-study-by-mary-ann-l-wymore-greensfelder-hemker-gale/

    Substitute Facebook for Twitter. It’s the exact same thing.

    Morel had the financial resources (including the backing of Corbis) to carry out this legal action. Unfortunately, most photographers and other such artists usually don’t have the necessary resources to carry out an action.

    It should be noted that the Copyright Office has completed a study and is recommending that Congress create a system for a small claims option where proceedings could be administered through online and teleconferencing facilities without the requirement of personal appearances.

    That could be a real boon for those trying to protect their intellectual rights and the livelihoods produced by creative works – and a real thorn in the side of copyright infringers.

    It should also be noted that copyright notice is NOT required:

    http://www.copyright.gov/circs/circ03.pdf

    Neither is copyright registration. Both are recommended, but copyright law states that the author of any intellectual or creative work receives copyright protection from the moment of its creation.

    So people should automatically assume that any photographs, artwork, music, articles – anything they find online – is automatically protected by copyright law.

    Oh, and attribution is NOT a substitute for permission. Ever.

    Those are the facts, folks.

  • brownskie

    Lol keep thinking that. Anyway we learned our lesson years ago.

  • Joel

    It bothers me that the author of this story begins with, “Normally, we wouldn’t give much attention to the thoughts of an editor/publisher for a small community newspaper.” Really? As a current managing editor of a community newspaper and community newspaper employee for 11 years, I take offense to this statement without ever reading his story. I’m uncertain whether or not Mr. Becker intended this to be as insulting as it sounds, but regardless of the intent it stings unnecessarily. Community newspapers to which, according to Mr. Becker, “we wouldn’t give much attention” helped build the communities they are part of. It is the community newspaper, Mr. Becker, that helped change the face of many political scenes. It is the community newspaper, Mr. Becker, that keeps the community it represents focused on matters at hand, pop culture aside. Instead of keeping up with Kardashians, we’re still keeping up with the Joneses. We are the mother, the father, the proud grandparents, the small town ball game, the church, the schoolhouse, the student, and the memories. The opinion of a community newspaper, Mr. Becker, is of the utmost importance because it is the voice of the average American.

  • Ashish Patel

    “Kalindi power and steel ltd.” fraud company where is MD Mr. Ajay Agrawal, He didn’t give my 3 month salary, and also did same thing with many of the employee. always doing same thing, also involve many tax related fraud, it have more pending electricity amount of CSEB, where govt. not able to take any type of action for receiving outstanding amount…