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.


 
  • Wolfgang_Zimmerman

    And you did not pursue it further?

  • BrokenPencil

    From the horses mouth.

    (check the facebook tos. )

    “For content that is covered by intellectual property rights, like photos
    and videos (IP content), you specifically give us the following
    permission, subject to your privacy and application settings:
    you grant us a non-exclusive, transferable, sub-licensable,
    royalty-free, worldwide license to use any IP content that you post on
    or in connection with Facebook (IP License). This IP License ends when
    you delete your IP content or your account unless your content has been
    shared with others, and they have not deleted it.”

    As long as the editor doesn’t change the “copyright holder” of the
    photo. He’s got nothing to worry about. He even clearly states that he
    did not remove the watermark copyright from the photo. Boom you lose.

  • BrokenPencil

    It pretty much is public domain unless you state your copyright license. But by posting it to facebook in exchange to be able to use their free service.. you give up quite a bit of your rights. so…

  • Jim Dean

    I’m an Online Editor at a newspaper outside Atlanta. We do use Facebook photos from time to time, but only after we’ve very, very clearly confirmed the origin of the photo in question.We specifically ask if the photo was taken professionally, and for contact information no matter who took it. Until we get an okay from the person who actually owns the copyright, which is NOT Facebook, we don’t run it.

    I saw some other postings about how putting it on FB puts it in the public domain because of their licensing. The license is basically just there to give them legal permission to store/copy/transmit the photo within their system and into users computers. It does also give them some rights to use a photo for their advertising, but doesn’t give up the original copyright.

    As for fair use, remember the rule. If the photo is ABOUT THE STORY SUBJECT, it’s not fair use. If the STORY IS ABOUT THE PHOTO, and NOT about the subject IN the photo, it IS probably fair use. Note, not about the subject of the photo, about the photo itself.

  • Bill Toscano

    It is distressing that you choose to make fun, in general, of the small community newspapers that are at the base of the business and offer excellent lessons for larger papers.

    You could have pointed nad laughed (which was well-deserved) without the condescension.

  • Bill Toscano

    Thank you. I made a similar comment before getting down this far.

  • Bill Toscano

    Yes. Especially smart people.

  • Bill Toscano

    It was a good photo.

    /sarcasm.

  • BenDover

    BrokenPencil- The editor’s usage of the photograph in the article has nothing to do with Facebook.

    If the photo was used by the editor without permission on an article, then they are infringing and are liable. Period.

    Facebook did not give this editor the photo to use freely.

    Time to tell the horse to shut up!

  • BenDover

    No it is not public domain. Works in the public domain are those whose intellectual property rights have expired, have been forfeited, or are inapplicable.

  • Roger in Orlando

    Oh? Is that why Google pays America’s newspapers billions per year for “fair use”? Uh, news flash, they don’t. Legally, things are murky. But as newspapers die because their expensively created content is swiped, aggregated and re-sold with Google/Bing/Yahoo ads or just flat out stolen by Huffington Po., Gawker or Any Given British Newspaper, the notion of “it’s posted on the web/Facebook, public domain” muddies the waters just enough for legal wriggle room. If the photo was submitted, my sympathies lie with the editor, and the courts might as well.

  • http://www.bostonstreetphotography.com/ Joe Harrington

    I used to do concert work with her, she’s trouble, The editor should dig deeper, she probably intentionally had the pic sent in to reap the rewards of payment, or non-payment. I shot concerts for her when I was new to the game, and there was “no pay” because allegedly she “wasn’t making money” from her site. So when I was a no show for a concert due to my day job, I was “not a professional” and even years later she never spoke to me again. I know better know, it was true, I wasn’t a professional, because if I was I would never have agreed to work her site for free while she sat back and collected the rewards $$.

  • CB

    It says FB has the right to license. It doesn’t say that the paper has the right to take…

  • james

    Just another heads up to watermark your photos before posting it online.I use Mass Watermark to watermark all my images in batch before uploading to facebook

  • BrokenPencil

    what makes you think fb didnt license it, lend it, w.e with it ti the paper.

  • Michael H.

    While I disagree that you can “send a bill” after the fact and that it’s enforceable (there would have to be a meeting of the minds for that to even be a contract), the TOS that is listed above pertains to Facebook’s use of the image, not an outside third party.

    Basically, it’s saying that Facebook can use it where you post it … It’s similar to if you did a release with a newspaper. They may have a line that says you give the newspaper permission to publish the picture in their newspaper. It’s specific to the original publisher, not a third-party entity.

  • Michael H.

    What makes you think this is going to be a “fat check”? Even in an infringement case, unless there is evidence that the editor was looking to deliberately cheat someone out of money, the photographer would only get fair market value for the photo, and court costs, typically. So say she usually earns about $15 a photo — that’s what she’ll get.

    This is not meant to be a windfall for someone. Only to make them whole.

  • Michael H.

    I was not there when the editor made the decision to run, or how he got the photo.

    But if we were to give him the benefit of the doubt, and say that the photo was submitted with a release … the editor does NOT have a responsibility to check the copyright status of the image. Newspapers receive hundreds if not more releases every day, many of them with images attached. It’s impossible for them to verify that status on everything received.

    If the editor DID receive it via email, then the editor may be considered appropriately under the impression that the photo is available for use. If that is not the case, and the editor is contacted, then the appropriate action by the editor is to remove the photo from any online property (like a website associated with the paper), and then they are “on notice” that pictures from this source are under copyright without permission to reprint.

    Because there was no contract between the photographer and the newspaper, and the newspaper acquired the photo through normal channels (as a submission), and reasonably believed it had permission to then publish the photo, there is little else that can be done with this particular photo publication.

    The photographer has a right to protect their copyrighted work. But the editor, as long as he’s not operating under malice, has a right to be notified if he has indeed stepped into an area of infringement. The first step (and usually the only step) is cease and desist. Anything beyond that, well, let’s just say it would be an uphill battle, and probably much more expensive than it’s worth.

  • Michael H.

    No offense to your journalism degree, but unless you’ve been in the newsroom and practicing … well, let’s just say that things look great on paper, and not always practical in the field.

    To even move forward in a copyright infringement case, you are going to have to show malice. If the editor, for instance, retrieves a photo from a spot that clearly states “may be under copyright,” then there might be a case.

    However, receiving a photo with a release, there is a presumption that the party sending the photo has the rights to authorize a publication to print it. It’s like if you sent a note to a newspaper reporter via email, and then that email gets published — unless you specifically state that the conversation is off the record (and even then, it becomes more a moral issue than a legal one), there is a presumption that everything you say in that email is on the record.

    Copyright infringement typically is about malice. You knew it wasn’t yours, you were informed that it wasn’t yours, and you continued to use it. The copyright holder actually carries the higher burden of enforcing copyright — they have to inform an infringer, and give them an opportunity to cease and desist.

    You can’t just send a bill — especially with some obscene amount. That could turn a court against the copyright holder, because even if the newspaper were to say, “OK, we didn’t know, but we will pay you,” it should be fair market value. So if you’re selling photos typically for $15, that’s what you get. Period.

    If you charge $15 per photo, and suddenly you’re billing a newspaper $3,000 after the fact — well, all I can say is good luck.

    I have had to deal with both sides of copyright and Fair Use — out in the field, not on paper. That is what material we are using is blocked by copyright, and then with outlets who might be violating my own copyrights. I can tell you that the first (and most of the time only) step is notification of the infringement. Usually it stops after that, but that notification typically has to be there, and then in order for a lawyer to even think about representing a copyright holder in an infringement case, the infringer would have to have violated the copyright AGAIN, after notification.

    I’m not saying this editor is right … I am not fully into this particular story. But I am just providing insight in general in terms of copyright, and what newspapers are able to do.

  • Michael H.

    Metadata would not protect you anyway. Copyright notices must be visible — and not just in a “hover-over” way. Typically.

  • Michael H.

    A watermark, by the way, is an excellent way to show that the image being used is likely copyrighted. I know if I receive a watermarked image, I go back to the person who provided it and ask for a non-watermarked image. if they are not able to provide that, then it’s probably a good practice to NOT use the photo.

  • Michael H.

    OK, so instead of just reading comments here, I read the full story, and also watched the YouTube video.

    I was on this editor’s side (that the photo was submitted to him) up to the point where he then states there is a watermark on the photo.

    I made this comment below, but a watermark is a red flag on a photo. If someone were to submit a watermarked photo to me, the first thing I do is ask that they re-submit the picture without the watermark. If they are not able to do so, then I don’t use the photo.

    There are protections for what is known as inadvertent infringement, meaning that an editor in good faith believed they were allowed to use the photo (i.e., someone submitted it to them), and were not previously informed of a copyright, or a potential copyright situation. Like I said before, the copyright holder has an obligation as well to enforce their copyright (but not by coming to someone after the fact and sending them a bill — it’s more like notifying and then asking them to cease and desist).

    However, I would be hard-pressed to say that a watermark is NOT warning of a copyright. To me, it is. Just like putting a copyright notice with a copyrighted piece of work.

    So in my opinion, the editor missed a red flag with the watermark.

    HOWEVER, while it might be fun to discuss how the media is stealing from people, and whether or not Facebook throws images in the public domain (it does not), the copyright holder probably extended herself a little bit.

    The appropriate course of action is to inform the editor the photo is protected under copyright, and that if they see that particular watermark, then it’s a photo the holder owns the rights to, and the paper would have to receive it. They can also inform the paper that they would like the photo removed from online sites it operates, and that they cannot use future photos from the photographer without the photographer releasing it.

    But that is it. No bills, nothing like that. I mean, there is nothing stopping the paper and the photographer from doing a cash settlement — but if the newspaper talks with a lawyer, they would most likely realize that it couldn’t go to court successfully anyway.

    Hopefully that editor is reading comments here, and realizes that just because a photo is available on Facebook does not mean that it is in the public domain — that cannot be used as verification. If it was a submitted non-watermarked photo, and he had just stuck with that, I’d defend him. But yeah, watermarked? That’s a red flag, and he should’ve cleared that first through the appropriate channels.

  • Rabi Abonour

    The editor lost this argument when he said that the photo is public domain because it’s on Facebook. I don’t really have any desire to defend him.

    However, not knowing the full story, to me it seems most likely that the photo was submitted by the artist(‘s representation). My experience with newspapers is that when you’re sent in a courtesy photo, you just assume the person submitting it owns the rights. That’s a lame excuse, but in the world of daily deadlines it’s just how things go.

  • Rabi Abonour

    My guess is that this photo *was* submitted by the artist.

  • BrokenPencil

    Here copyright notice doesn’t have to be visible. Our laws give you full copyright ownership (visible or not) at the click of the shutter. The money you can receive from a lawsuit, depends on if you registered the photo with the government before or after you’ve published. BUT! if you publish a photo to a site where they delete your metadata and receive full usages rights for your photos etc ( like facebook does ) Then you’re shitt out of luck registered or not.

    And let me ask youwhy strip the Metadata when it’s known that much of the image information is stored there. For instance.. camera and lens serial numbers are stored in the exif. So is all the contact information and copyright notice. Where was it shot, who the photographer was, who it was shot for, what settings were used, even how many shutter actuation’s on the camera etc…

    When we receive an image from someone, that’s the first place we check. If nothing is there we reject the photo unless more proof is provided. That’s how we roll here. But be warned post to facebook and sites that receive full usage rights etc.. don’t come bitchin to us about it after.

  • BrokenPencil

    Not only that Dominic, but it also shows that the person went the extra step to rip off your photo. When this happens it’s a guaranteed win for you. Not so with facebook.. judge will look at you and say.. well what did you expect? you posted to facebook fool!

  • BrokenPencil

    It’s nice that you disagree but you’re not a copyright lawyer. Anyway I’ll leave you with this since you didn’t read the whole tos.

    “you grant us a non-exclusive, transferable, sub-licensable,
    royalty-free, worldwide license”

    See “transferable” ;) wtf do you think that means!

  • BrokenPencil

    Disagree all you want. It doesn’t matter what you want to think about your precious facebook account. You post to facebook and it becomes public domain. Simple.

    How about you pay a copyright lawyer to read over facebooks TOS and see what he tells you. We have one in house and the only reason we won’t use photos that have had their meta stripped or even photos that come from fb knowing very well we can use them, is because of morals. We are also artists here at this company, and you’ll never catch us post one thing on facebook or sites that have a TOS like theirs.

    Anyway disagree away, I’m sure some of your works are worthy enough for someone to rip off someday.

  • Michael H.

    “Transferable” means that if Facebook is bought out, everything you read in that TOS would transfer to the new owner.

    So say Google buys Facebook, Google either creates a new entity with itself as the owner, or Facebook is absorbed by Google. Either way, they are able to grandfather all the past material, and it’s transferable to the new company.

    You’re right, I am not a copyright lawyer. But I’ve been doing this a long, long, long, long time. :)

  • Michael H.

    Posting to Facebook does not make something public domain any more than someone publishing a photo in a book makes it public domain. The idea behind copyright is that you have the right to copy it — and that the act of copying and publishing does not relinquish your rights to it.

    To say that publishing to Facebook makes it public domain is simply not true. The act of making something public domain is a rather complicated process, and not done as simply as “Oh, I just uploaded this to Facebook.”

    I am not sure if you’ve actually consulted an in-house lawyer on this (and if they are giving you advice that Facebook creates a public domain situation, then I fear that you may be getting incorrect advice, or might be hearing him incorrectly.)

    But seriously, the TOS that Facebook uses is a standard boilerplate you find on many social media sites. People keep saying that it’s Facebook taking ownership of it, or stripping rights away. All it is doing is saying that Facebook can place the content on their servers, and that it might end up copied on multiple servers, since they may be mirrored. The transfer clause you mentioned is legalese for “if our company is sold, all of this still applies.”

    Otherwise, without the transfer clause, if Google were to buy Facebook, you could go and say, “Hey, you can’t have my content on there! My terms of service that I agreed to was with Facebook, not with Google.”

    As you probably know, the TOS is a de facto contract between the user and Facebook. Just like when you buy a house, your mortgage is a contract between you and the bank. If you read your mortgage, you will find a transfer clause there. That doesn’t mean that your house goes to the public domain — it means that if your bank is sold (or the mortgage itself is sold), you’re still bound by it, even though your agreement was originally with said bank.

    I know you are trying to turn a copyright discussion into a TOS discussion, but really all you’re arguing there are contracts, and TOS is a contract.

  • Michael H.

    First, you’re right — you do not HAVE to display copyright information in order to enforce copyright information. But if you are dealing with a potential infringer, if you are not making copyright ownership clear, then you have to go through extra steps to enforce the copyright. So I do apologize for not being more clear on that.

    How does “registered the photo with the government” have to do with the “money you can receive from a lawsuit”? There is something you should really understand about copyright law — as soon as you PUBLISH something, you earn a copyright status. You do NOT need to register it with the government.

    Why register it with the government then? Well, it gives you proof of having something first. If you are in really any intellectual property battle, the first thing you have to prove is that you had the subject that is being fought first. So if you register IP with the government, and someone used it AFTER that, it gives you solid backing. If you do NOT register it, then you have to prove that you used it first.

    I had a brand several years ago that I never trademarked (you’ll see a lot of similarities between trademark and copyright). But yet, when someone wanted the brand, they couldn’t just start using it because I had never trademarked it. If they had tried to trademark it, I would be able to legally challenge it — because you are NOT required to register. Registering gives you a layer of protection that helps quite a bit, but all I had to do was prove that I was using that brand already, that the brand was unique enough to protect, and that I had control of it.

  • Michael H.

    I don’t know if that statement lost the argument in my eyes, but it did make me question his overall judgment, because that is simply not true. He lost me when he acknowledged the photo was watermarked, and such a move did not act as a red flag for him.

    I don’t think that the assumption aspect is a “lame excuse,” however. Depending on the judge, of course, you typically get a benefit of the doubt that if a photo is submitted to you, you’re being granted the right to publish it. Unless there are red flags (like watermarks, etc.), it’s an assumption that would typically be granted.

    But once again, you go into a C&D situation anyway. As long as you’re not acting with malice.

  • BrokenPencil

    Yup you’re 100% right. We are wrong, so are our lawyers. You win, let me know you’re bank account info I’ll send you the money we pay our lawyers. By the way.. go post some more work on facebook, it’s safe to do so. Ciao

  • Michael H.

    I’m not exactly sure why you are so nasty about it. And to be honest, I am struggling to believe you’ve even talked to an attorney about it.

    I’ve been around all of this for a long time. Trust me, I survived the purge of the late 1990s when film studios were coming onto the Internet and shutting down a lot of sites — many times on baseless grounds, all over copyright. There it was a battle of Fair Use and such, and sometimes the sites were violating copyrights and trademarks, but many times they were not.

    You have provided TOS to Facebook, and have completely misinterpreted it.

    If you go to /legal/terms on Facebook, you will find the following statement: “You own all of the content and information you post on Facebook.” It’s quite a clear interpretation of their own TOS, and yes, it IS legally binding — if Facebook publicly defines a statement in a way, there is no secret backdoor aspect to it. Otherwise, it’s fraud, and Facebook isn’t doing that.

    Yes, Facebook can use your image in an ad without giving you anything, and they can even license someone else to come in and use that photo as well, also for free. Their TOS is quite clear on that.

    But it does NOT give Joe Blow the right to just step in, grab the photo, and publish it in a newspaper story when Fair Use does not apply. Thus, is it NOT public domain, as you have claimed on here a couple times.

    “Public domain” is different than granting a license for someone to use something. You are granting Facebook a license to use your content, and granting the, the right to sub-license it even further up until you delete that content. It does NOT give anyone permission to just step in.

    Just like if I said you could use a photo I took for a book you’re doing. I grant you a license to do it, and may even word the agreement to where you could sublicense it. But it doesn’t give Oprah Winfrey the right to then take that photo from your book and publish it in O. If the photo were public domain, then yes, she could do that. But if the picture is licensed, as it is with your Facebook agreement, then no.

  • Rabi Abonour

    It lost the argument for in the sense that, while the watermark should have raised a red flag, he public domain statement was just indefensibly ignorant.

    When I said “lame excuse” I don’t mean legally. I don’t think there is a persuasive legal case against the paper here. I just meant that, in a perfect world, editors would be making absolute sure that all courtesy photos are legit; from personal experience, I know that this is impractical and doesn’t happen.

  • Rabi Abonour

    There is absolutely zero evidence that Facebook has ever even considered trying to license users’ images.

  • SiriusPhotog
  • Adam Gasson

    Hold on, if that were true, and fair use means you can use newsworthy copyrighted images without permission or payment, then Getty, AP, Reuters and a lot of other ‘news’ photographers and agencies would no longer have a business model. Fair use is used far too often as an excuse for using photographs without permission – and typically the use would rarely fall under the realm of fair use.

  • Adam Gasson

    I agree Howard. Local newspapers write about local news. Comments like that just makes Petapixel sound arrogant. People forget that a lot of national stories start out as local stories.

  • Adam Gasson

    David, there was really no need to put the sentence “sample headline: Two New Restaurants Coming to Mall” in this article. It’s condescending and touches of arrogance on the part of yourself and PetaPixel. Local newspapers cater for local news – with your experience as a journalist you know that fully well. I’ve worked on many national news stories in the UK that were first investigated by local newspapers. They’re the lifeblood of the national press. This story was shocking enough without the need to pass comment on their headlines.

  • Adam Gasson

    I don’t think that’s always the assumption. I’ve dealt with nearly all the national newspapers and local papers in my area in the UK and I’ve always been asked if I have the rights to supply them with the photograph. Same applies for newspapers in the US and Australia.

  • Adam Gasson

    It’s no different from handling stolen goods. I can sell you a car stereo and tell you it’s all fine but if the stereo’s been taken without permission then it’s still illegal. Same as if you’re given a photograph. The newspaper should’ve asked who the copyright holder is and gotten a licence (or at the very least an email) to use the image from the copyright holder. If the artist (or management) is claiming copyright ownership then the photographer has a case against both them and the paper.

  • Michael H.

    Hmmm … I would think that it’s quite different from handling stolen goods, since stolen goods is a criminal offense, and copyright infringement is a civil offense. So yeah, you can’t compare the two.

    The newspaper (nor really anyone, for that matter) is required to ask who the copyright holder is, or who received a license. Even if the newspaper DID ask for that, how would you verify it? There is no standardized form that would provide authentication of such information, so what would be the point?

    Also, it is entirely impractical. The next time a prayer group sends a photo of their bake sale, are you saying that the editor should demand from them the name of the copyright holder, and a license to publish?

    I am not going to go into the whole thing I’ve already discussed before, because it’s already here. But please look at my other discussions in this topic. Thanks! :)

  • t8t

    Nope. You give a license to Facebook to display content, and retain copyright.

  • t8t

    The stupid, it burns.

  • Victor

    You’re missing the point. Based on what you are posting from the TOS, Facebook could allow the newspaper, via contract/license, the ability to show run the photograph, but that contract/license must exist, otherwise it’s theft. Copyright to creative works is held by the creator of the work, and is either licensed or transferred to end users. Go and read the tutorials on the ASMP and APA sites (they’re free). Then you will have a better understanding of how all this really works.

    BTW, the photographer’s recourse is limited unless the work is actually registered with the Copyright office (to actual damages). If the image is registered, the paper can be held liable to punitive damages. Either way, the photographer owns the rights to the photgraph.

  • http://www.fb.com/docfluty Doc Fluty

    As a photographer that has sued 3 companies because of stolen images off my FB account… you are very wrong.

    You keep all right of your images when you post to facebook. Unless FB decided to license those images to a newspaper or whoever. You are within your right to ask them for proof of their license… and when you do, and they cant… they have to pay.

    Please stop forwarding your information as truth when you really have no idea what you’re talking about.

  • http://www.fb.com/docfluty Doc Fluty

    Michael, you are correct. I have sued 3 companies for stealing my work off of facebook. Even had a large multimillion dollar company manger tell me that’s how they get parts pics for their website.

    He laughed at me and hung up… I laughed when I cashed his check and the company had to write a story on image theft on their company blog to educate their staff.

  • Tony Sleep

    Mr Pencil, you are posting stuff that is as wrongheaded as the idiot editor in the story.

    Ben Dover is absolutely correct about public domain.

    If your lawyers are telling you otherwise, get new lawyers or stop hallucinating.

    FB’s TOS are horrible, but they don’t create any permission for any third party (eg you) to take and use work that is, and remains, copyright of the photographer. They are horrible because they potentially allow FB to (sub)license its advertisers to use any content submitted by users, including photos. Also they impose legal liability on the user for any problems arising.

    All of which has the potential to go very wrong because (a) ad use without model or property release is hazardous (b) vast numbers of pics are posted on FB without any legal authority, by people who neither own the copyright nor have any license from the copyright owner to assign rights under the FB TOS.

    You and an awful lot of people are simply wrong to imagine copyright somehow no longer applies to photos you find posted on FB, or have no metadata, or you can’t ID or contact the owner. No permission = infringement, unless there is an applicable CC license or similar *or* a fair use/fair dealing exception that applies. And you had better understand exactly what that means, because it is quite specific, not whatever you think is fair. Simple really.

  • Tony Sleep

    “the editor does NOT have a responsibility to check the copyright status of the image.”

    Certainly in the UK this is incorrect, as established by the Banier judgement. I would be suprised if US law is different.

    http://www.thelawyer.com/permission-before-you-publish/78733.article