He Said No, Fox News Used His Images Anyway

Update: Fox News claims it licensed Robinson’s images legally through another channel after being directly rejected by the photographer. See the network’s statement below.

Over the weekend, Ellicott City, Maryland was pummeled by massive rainfall, which triggered devastating flash floods through the historic district of town. Resident Max Robinson was trapped in an apartment building near Main St and Maryland Ave when he started documenting what transpired on Twitter.

As the social media coordinator and journalist, Robinson was no stranger to social media norms and intellectual property rights. So when he received a request for free publication of his work on “Fox News Network, LLC & Fox News Edge affiliates use on all platforms” in exchange for credit, he responded quickly and tersely.

But the request seems to have been perfunctory because Fox News used his content anyway [Update: See Fox News’ comment below].

The National Press Photographer Association’s General Counsel and photographer advocate Mickey Osterreicher didn’t take kindly to the blatant disregard, accurately pointing out that under U.S. Copyright Law 17 U.S. Code § 504, willful infringements can lead to statutory damages up to $150,000 per image.

Photographers started tweeting at Max Robinson to protect his IP and lawyer up. Even “copyright troll” Richard P. Liebowitz reached out.

Ever since Daniel Morel won a $1,200,000 judgment against AFP, media organizations have been wary of posting content found through social media. The practice of assigning a junior producer to acquire free rights through a tweet or DM is sadly still prevalent – particularly when it comes to breaking news – and is certainly not confined to Fox News. But the blatant use of Robinson’s photo/video after he specifically denied them permission has become pretty rare given the huge legal liability that it presents.

Statutory damages are only applied to content that has been registered with the U.S. Copyright Office. But content creators have up to 3 months to register their works after initial publication for infringements that occur prior to registration. Attorney Leslie Burns commented, “If one registers a work after the 3-month window, the one can still get statutory damages but ONLY for infringements that start (not just that are discovered but that actually start) after the registration.”

In other words, register your copyright.

Update: Fox News tells PetaPixel that it used “APTN as the source for the images on all our coverage over the weekend – including the photo in question. We licensed the footage through AP’s licensing service, APTN, who made this material available to all their subscribers.”

Update on 5/31/18: Here’s a closer look at what happened in this incident. Basically: Robinson had denied Fox News permission to use the photo but had allowed AP to distribute it. Fox News legally licensed it from AP (likely a different producer than the one who asked Robinson for permission).

About the author: Allen Murabayashi is the Chairman and co-founder of PhotoShelter, which regularly publishes resources for photographers. The opinions expressed in this article are solely those of the author. Allen is a graduate of Yale University, and flosses daily. This article was also published here.

Image credits: Photo by Max Robinson (@DieRobinsonDie)