Category: Photojournalism

A freelance photographer has been helping me out for a few months at the weekly paper I run. We don’t have money to pay him, so he gives us photos and then sells them on his website after we get first publication choices. The city is now telling him, rather harshly, that if he shoots anything on city grounds and then sells the photos, he has to pay a “vendor fee” every time he shoots a city event. I’ve explained to them that he’s shooting for us, but they’re being stubborn. I want to tell them that as long as it’s a public event on public property, we’re allowed to shoot it and sell the photos. Then I thought I’d double-check the law on that with you guys. Can they force us/him to pay that vendor fee every time? If not, where can I point them in regard to press freedoms?

No. People generally have a right under the First Amendment to take photographs in public places without interference from the government (see this handy guide for photographers created for the National Press Photographers Association in 2005).

This has often been challenged – recent controversies include the Long Beach (Calif.) police chief saying he could detain photographers who take photographs without artistic value and several cases in which citizens made audio or video recordings of police doing work in public places, thus violating state eavesdropping or obstruction laws. However, the fact remains that taking photographs in public places, whether for newsgathering or other reasons, cannot be punished under the First Amendment unless the state can prove an overriding interest.

The vendor fee presents a tricky issue, however, for two reasons.
First, the government can create reasonable time, place and manner restrictions on speech if it is applied regardless of the content of the speech. These include fees such as permit costs for security for a parade. However, the restriction must be serving an important state interest, and it must be no broader than necessary to serve that interest. In 1992, the Supreme Court disallowed permit fees charged for a civil rights march in Forsyth County, Georgia, because the fees were too broad and ultimately reflected on the content of the speech. Because photography is protected expression, a similar analysis would likely apply to vendor fees; unless the city could prove that they were no broader than necessary and protecting an important government interest, they would fail the Supreme Court’s “intermediate scrutiny” test.

Second, local governments in Texas are limited in the kinds of fees they can charge and collect. These must be specifically outlined and authorized by statute. While some form of vendor fees may be permissible, the sort at issue here are dubious at best.

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/.