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Ask an Expert Questions and Answers Photojournalism

Some parents posted sports photos of their kids on Flickr. Can we just grab a couple for the paper?

Not so fast…just because they are “out there for everyone to see for free” doesn’t automatically give you the green light to run them as you please. While the first amendment grants us great leeway and courts have determined that prior restraint isn’t allowed (with rare exception…troop movements, etc.) this doesn’t give you carte blanche to scavenge in Internet for photos of little Billy scoring the winning run in yesterday’s extra-inning thriller and plant them on the sports page.

Although sites like Flickr encourage sharing of photos, it’s not without conditions. Flickr even allows various licensing levels to be selected by their users, further muddying the copyrights water. For instance, a user can set the license usage for their work as “public domain” if they so choose. If no licensing level is set though, does that mean they are automatically in the “public domain?” Can a newspaper claim a “fair use” exemption?

If the game becomes a legitimate news event, (such as a photo of someone during the game who is later abducted, murdered, killed in a car wreck on the way home, or even wins some great prize), you might have a better “fair use” defense for publication, but despite no clear copyright label, under current copyright law an image is copyrighted the instant it is created by the photographer, unless it was created under a “work for hire” agreement. Absent such an agreement (or any other written or verbal contract or permission), legally you are violating the image creator’s copyright, which is punishable by a fine of up to $150,000 per incident.

Of course most courts are lenient if you show a good faith effort to remove the photo that is in violation (especially on websites), but it’s a little harder to do in print…and an apology and correction won’t always absolve you of any monetary liability. Courts tend to see this as a copyright issue, not a freedom of press issue, and a photo does NOT have to be officially copyrighted or even labeled as such to invoke copyright protection, although if the copyright owner does not register their creation within 90 days of publication (their original publication on say Flickr, not YOUR re-publication of their images) it does limit damages that can be awarded to “actual damages” (which would be fair market value of the image). Also, for any NON-PUBLISHED images, the author has up to 5 years after creation to register their copyright in order to collect punitive damages.

Remember, all images are automatically copyrighted by their creator unless they are covered under “work for hire” rules, such as your editorial employees. Even a freelancer in your employ is not automatically covered by “work for hire” copyright rules, so make sure you have an agreement with the photo’s owner before you publish it…otherwise you may find yourself dealing with a copyright attorney.

For more information about photography and copyright law, go to http://templatelab.com/copyright-basics/.