Say something happens. It’s not photogenic. Maybe your city decides it’s going to replace a water line. You put together a web update so you can get the news out quickly. How do you illustrate that story?
The answer is that no art is better than stolen art. Running your story as text-only is a better idea than stealing a photo of water pipes that you find on the web. I know that flies in the face of what you may understand about creating greater web traffic, but things that aren’t ours, aren’t ours. To be clear: You are not free to Google around and drag just any photo into our content management system.
This week, I had a chat with Jim Ewert, general counsel for the California Newspaper Publishers Association. We talked generally about fair use and copyright and photographs and he noted a couple of important distinctions between things we might publish online and in print.
Things we post online are covered under the Digital Millennial Copyright Act. If you should receive notice from someone saying they own the rights to a photo that you accidentally ran online, the prudent action is to take that photo down while you research ownership. If it turns out to be a photo you own or one that you have express permission to run, put it back up.
Other key points:
Fair use: This doctrine of free speech protections is difficult to claim with photos. That is because you almost always use the entire image. Fair use applies to using a snippet of copyrighted material as part of your larger piece. You might quote from a Bob Dylan song, for example, as part of your story about his Nobel Prize. While you are free to do that, you are not free to copy and paste his entire memoir nor a copyrighted image of him you found online. …
Facebook: Ewert is clear that copying photos off of Facebook leaves you open to serious liability. He says you don’t know who owns the rights to those photos (other than Facebook itself) and that using photos you find there is extremely risky. One possible workaround he suggested is to take a screenshot of an entire Facebook page that includes the image. I guess that’s a possibility. This has always been a gray area for us and now it is a lot more black and white.
Advertising: All of this goes for advertising and Central Design as well. Ewert related how one California newspaper created an ad using a mugshot of Marilyn Monroe. It would be easy to assume that no one cares about a photo of a dead celebrity, but that turned out not to be true. Ewert says the actress’ estate sued and eventually settled for $10,000.
Ownership: On more than one occasion, we at The Half Moon Bay Review have asked an artist or a band for a photo and then used what they sent us only to hear from the actual photographer who said we didn’t have the right to use it. I have always been able to explain that we acted in good faith and that we thought we had permission, but that is fraught as well. Many people send photos without the rights.
Software exists that will search for your image across the web. In fact, some newspapers have used such things to assert their own copyright to images found elsewhere. If you routinely take photos from the web or Facebook you will be hearing from someone’s attorney.
So what do you do? Take your own photos. Look into Creative Commons sites like this one (and follow the rules. I used one of those photos on this post.) Ask permission and document. I have a template for a stringer agreement that expressly allows not only one-time use but archiving and other uses. One tip: Look for government and educational sources with .gov or .edu suffixes, and then ask if you can use them. More often than not, they are happy to see their educational work spread widely.
This really isn’t about liability. Protection of copyright is an ethical matter. We do what we do because we value the accrual and flow of information. We shouldn’t use the work of others without permission and credit.