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.


 
  • gochugogi

    A local newspaper editor told me almost daily their staff grabs photos off FB and runs them. And they have most of the same excuses as this deadbeat. And, yep, they laid off their only full time photog, apparently since “public domain” photos are so easy to come by…

  • moonshin

    send the newspaper a bill for 2-3k. if they refuse sue them for copyright infringment,seeking the maximum allowed by law….

  • derekdj

    Clearly the editor is an idiot, that like saying putting their newspaper articles online makes it public domain.

  • Wolfgang_Zimmerman

    No, he is not an idiot. He knows that in most case he will be able to get away with it. Just think of how much money he is saving even if, after the RIGHT KIND of pressure has been brought upon him, he will “reach an agreement” and pay up.

    This has been happening everywhere for some time now, and the situation is not going to get any better, on the contrary, it is going to get worse, thanks to modern technology.

  • IAM_THE_KGB

    Exactly. Why pay when the likelihood that you’ll be sued is pretty small.
    Most (but not all) sheeple these days will just walk away bitching, and and moaning and do nothing.
    The odds are sadly on the newspapers side.

  • jrconner

    This is not an isolated incident. A friend, a former state legislator, had a similar experience with his Facebook photos and a newspaper. I don’t think these are cases of being clueless. Most journalists have been to J-school and know about copyright and fair use. No, this is a case of someone not governed by an inner sense of right and wrong reckoning he could get away with it, and that even if caught the photographer would make a “business decision” that a fight over copyright just wasn’t worth it. I hope Ms. Pierson uses every tool available to protect her copyright and to make the wayward editor’s life miserable.

  • derekdj

    Actually he is an idiot. Newspapers used the same argument against aggregator sites using their content under the public domain/fair use claims. Aggregators claimed newspapers who post content online is in the public domain; the courts have already ruled on this. It only takes one big misuse and a savvy lawyer to force the newspaper to fire this editor on top of a nice fat check.

  • jrconner

    I’ve taken down most of my Facebook photos for this very reason. I still put up a few, for a few days, but I put my copyright notice and contact info on the photos, and do some other things as well, so that claims the images are in the public domain become much harder to make. I know I’m not deterring every thief, but I’m deterring some, and some is better than none.

  • Matt

    Simple business, taking stuff is free and when caught it is cheaper to settle than to have to pay someone’s wages. Pretty sick. But, there a lot of people who operate this way about all things. I belive that they are not the majority, but some days it does not seem like it.

  • IAM_THE_KGB

    Actually, it’s more an “editor” trying to look good to the owner/publisher by slashing costs to bring up profits.
    If you don’t have to pay for photographs since they’re all “free” now, it will look like you’re doing a great job, until they get sued, then just make a token payment.
    It’s all about money, no stupid editors, just money.

  • Banan Tarr

    Well.. okay then. *goes to Facebook, CTRL+A, DEL*

  • Ben Fullerton

    I’m not saying photographer’s should unionize, but what can we do as a rather large community to make sure this ends. Like someone said below, it’s only takes a few landmark suits to get to the point where papers aren’t willing to take the risk. If every single case like this was getting prosecuted, the practice would stop pretty quickly.

  • Sherry
  • everardokeeme
  • everardokeeme
  • Fuzztographer

    This definitely shows cluelessness, but they may have a strong case for fair use (newsworthy)

  • Wolfgang_Zimmerman

    Fair use? That is very fuzzy logic.

  • Todd

    Just stating the obvious, but is it possible that the person who gave the paper the photograph is the performer? If that’s the case, then most editors will presume that the artist has the right to use the image, otherwise why else would they be passing it out? After all, he says he saw the image on Facebook, not that he took the image from Facebook. It seems the onus here would be on the artist to pay and secure rights prior to distributing to media. And an artist shot which can’t be freely distributed for publicity isn’t really valuable.

  • Alex Minkin

    “…So I don’t know” about sums it up right there

  • Carlee Keppler-Carson

    It boils down to simply not wanting to pay for the product. It’s rampant and hurting everyone, including the reader of any publication that does this.

  • Bruce

    This. I work in IT at a newspaper. Our state newspaper association retains lawyers to give copyright advice. This is what they are told. Fair Use, not public domain as the idiot editor here said.

  • wilmark johnatty

    Go and register, go to the photos section he has photos some under roddys clicker – put some comments

  • pgb0517

    Not fair use. The story was not about the photo. If there were a news story about the photo, and printing the photo were essential to covering the story, then fair use applies. But just to look for a free image to run with a feature story in the newspaper’s commercial capacity, that’s not fair use. There are good Web sites where you can look this stuff up. I mentioned one in an earlier post, but I guess I got censored, because the comment was taken down (that’s lame), so I’ll just say to … use a search engine and research the subject. Maybe search for things like newspaper, photo, fair use, attorney.

  • pgb0517

    Newspapers are in the business of getting facts straight, in theory, so regardless of how valid the submitter looked to the editor, the editor should have done some checking as to what was legal. I have a journalism degree. Back in my classroom days, uttering words like “presume” and “assume” was a good way to get a lecture from the prof on never assuming.

  • http://howardowens.com Howard Owens

    The main thing that bugs me about this post is the snide, sneering, “(sample headline: Two New Restaurants Coming to Mall).”

    Clearly, David Becker knows as little about community journalism as the editor does about copyright.

    Chances are, that restaurant story was the best read story of the day. It’s exactly the kind of story a community news org should be doing. I don’t get the attempt to belittle the paper for running the kind of stories it should.

  • Tam

    i have a weird question… does the “public domain” still apply if you have the copyright info in metadata for the photo?

    like if you export in lightroom for example, and export with metadata settings stated to use image, you must contact photographer, copyright etc etc blah.

    just a thought.

  • Pryere Coleman

    People still use Facebook?…

  • 453245

    journalist are scumbags.. so what?
    is that news?
    :-)

  • http://twitter.com/Theranthrope Theranthrope

    Um… that doesn’t actually work. That’s -almost- as clever as the joke about the blond who put white-out on the screen to make a correction to a word-processing document.

    If you want to delete your photos/posts, you have to click the “delete”/”edit” on each each post manually; alternatively, there’s a way to delete your whole Facebook account, but it’s (deliberately) buried in an account privacy sub-sub-menu.
    Either way, FB can still at their discretion, reactivate some, or all, of your account and continue to sell your info to third-parties, via some fine-print in their EULA, which you agreed to.

    So, once it’s there; it’s there.

  • Confused in Warren

    Surely the newspaper has run stories in the past on musicians, most of whom have publicity photos, and the paper would know to ask for them?

    The story says she has been a singer all her life so she had to have some shots for her media/publicity kit they could have used. Why are they lifting stuff from Facebook at all?

  • Richard Lurie

    Facebook strips the metadata when you post.

  • pgb0517

    Community newspapers are the future of that media. The lack of such stories has helped drive readers from big-city newspapers. I, too, thought that remark about the headline was a cheap shot of ignorance.

  • Tito Herrera

    That Editor = MORON! hahaha

  • http://www.tiffinbox.org Seshu

    Go to the paper’s website. Choose a story they have written. Copy and paste the URL in a message to the editor and let him know that you will be using it on your blog (with a credit of course), since it is now freely available in the public domain. Oh, and do mention the fact that you will be scraping all of his content from now on for your own blog since you are too lazy to keep looking up who wrote what and where and that, again, since it is now in the public domain, it is free to use in whatever manner you would like. (Someone please note the sarcasm here)

  • http://www.bobcooleyphoto.com/ bob cooley

    Sorry, but its not a case of Fair Use.

    It’s Fair Use for Petapixel to use the photo (specifically and particularly in the way they did) because the editorial content is ABOUT the photo and the infringement itself. Showing the context (the photo in the layout) isn’t necessary, but it helps the readers, and makes an even better good-faith argument for Fair Use.

    The newspapers use of the photo is not Fair Use, because the article is not about the photo, its about the artist in the photo.

  • http://www.bobcooleyphoto.com/ bob cooley

    I wrote a similar reply before reading yours – sorry for the overlap, and +1 to your comment

  • wakingmist

    Same here. I stopped posting images on facebook and now have blog posts link directly to my site. On top of that I disabled right clicking on any images.

  • pgb0517

    Thanks~ Anyway, sometimes it takes more than one voice to break through the ill-informed statements.

  • http://www.ceaserphotography.com/ Sid Ceaser

    I had one of the biggest magazines in my state do something like this to me. I provided them a high resolution image for print, but they decided they didn’t want to use that, went to my Facebook page and took a low resolution image with a watermark on it. They cropped the image in such a way that part of the watermark still showed. When I confronted them via email about this, they told me they didn’t get it off Facebook. When I pressed harder, the person that did it emailed me back asking to get off her back as she was pressed for a deadline and to stop bothering her.

    It’s sad.

  • Tessa Dixon

    can a person disable right clicks on facebook photo posts?

  • http://blog.wakingmist.com/ Dominic

    I don’t think you can. My blog prevents right clicks within the theme.

  • Ian

    By that logic everything that is freely available (i.e. not behind a paywall) is public domain. Sadly, that’s what a lot of people think.

  • eperkins

    Just an FYI that disabling right clicking is very easily gotten around. It’s a mild deterrent at best and will not prevent anyone from copying your image if they really want to take the couple of extra steps it takes to do so.

  • http://blog.wakingmist.com/ Dominic

    For sure. But at least the lazy people will be deterred. ;)

  • BrokenPencil

    Sadly the act of posting it for a day or an hour puts it in public domain. You may want to read facebooks TOS a bit more deeply. Once it’s up it’s up for good. Even if you delete it. My advice to you is do not post photos to facebook that you want to make money from.

  • BrokenPencil

    Doesn’t work that way.

  • BrokenPencil

    I dont know why you got downvoted for telling the truth. Guess some people can’t handle it.

  • Matt

    What makes you think it does not work that way?

  • BrokenPencil

    Why do you think they do that ;) People need to read the TOS through a lawyers eyes.

  • BrokenPencil

    NSA seems to think so.