ALICE NEFF LUCAN


Lawyer for News Publishers
newslaw@newslaw.com

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EXPLODING COPYRIGHT MYTHOLOGY
 
A Primer about Copyright Law
for Print and Web Publishers
most recently edited on August 19, 2011 
 
Alice Neff Lucan 2011

Here's the disclaimer. The following is offered for your information to help you decide whether you need advice from a copyright lawyer. So read and heed. But if a non-lawyer tries to apply this as legal advice, there is a huge risk that the information will not be applied correctly.One fact omitted or added can change the legal outcome.

      It may NOT be okay to download photographs from another source for publication. The “fair use” doctrine does not always protect, even for a news   use.

      It is NOT okay to change art or text, then use a copy.

      It is NOT okay to copy freely from an open license site.

      If someone publishes something without a copyright notice, the work is NOT in the public domain. And removing a name or other information can lead to trouble.

Two federal district court decisions from the Southern District of New York describe a copyright fiasco that raises several of the questions listed here. In these opinions, the two federal judges allow a Haitian photographer to proceed with a lawsuit claiming that “big news” organizations grabbed his photos at the height of the Haitian earthquake story and used them without his permission.

A photographer posted his pictures taken after the January 2010 earthquake in Port au Prince, trying to let news organizations know that he had first hand, first recorded photographs and would sell licenses to use them. He posted the sales offer on Twitter and linked to his pictures on Twitpic.com. Almost immediately, an infringer posted the photos on his own Twitpic page, offering them for sale and without crediting the actual copyright owner. Compounding the infringement, AFP then gave the photos to its business partner, Getty Images, which offered them for sale. However, the photographer had a contract with Corbis, Getty’s direct competitor, so the value of Corbis’ license might be reduced Getty’s actions. CBS, CNN and more than half a dozen major newspapers also used the photos, and as the photographer alleges, did their copying and publishing without getting permission from him and without giving him credit. AFP and Getty tried to argue that by posting on Twitter, then linking to Twitpic, the photographer gave up his rights, but the trial court disagreed. Though there is “permissive language” in Twitter’s Terms of Service, the court held it is not enough to confer a license on Twitter/Twitpic users.

This looks like a case that will get settled eventually but it is possible to take lessons from this without getting further into the complicated facts.

- Do Not Mess with Copyright Management Information. Even without formal copyright notice, the pictures were protected and when, according to the court, (the photographer says) AFP/Getty printed their names along with the photographer’s name or with the original infringer’s name, without getting the photographer’s permission, this could have falsified the Copyright Management Information and violated the Copyright Law.

- Try not to capitulate to deadline pressure. Reading between the lines in the court’s opinions, it seems that AFP, CNN and CBS might have been trying to get the photographer’s permission, but maybe gave it up under the pressure of breaking news story. Part of the photographer’s complaint is that they had reason to know he was the photographer and no reason to believe the infringer owned the copyright.

- Read the Terms of Use. AFP/Getty said the Twitter license gave them permission to use the pictures. But when Twitter says we “encourage and permit broad re-use of the content,” the court held that is not enough to give AFP/Getty the license they claimed they had – or thought they had.
 
News graphics and art departments must know that this scenario during a breaking news story could be repeated countless times. Brand new photographs are protected by copyright world-wide. “License” is the key word. You need to know what the copyright owner will allow.