The thousands of images we see every day all originate somewhere, although that origin is not always clear. Everyone who makes images, uses images, or is depicted in them needs to understand how U.S. copyright law works to protect the creators of visual media.
Copyright Law
Communication professionals often make use of images from various sources, which is why it’s important to understand U.S. copyright law. It’s also important for your own life to understand what rights you have as someone who creates photos or appears in them.
Key ideas:
- Copyright law balances the rights of the photographer with the value of public access and creativity.
- It is not legal for news organizations and media companies to just use any photos they find online.
🗨 Have you ever had a photo of yours used by someone else without your permission? Has a photo of you (or someone you know) ever been used in some way without your knowledge? Was it a positive or negative experience?
It’s good to be cautious and assume almost all materials you encounter are protected by copyright. But it’s also useful to understand what is in the public domain, which describes all materials that are not covered by intellectual property laws. These materials are always legal to use for free in any way you want. Watch this short video from the U.S. Copyright Office:
Copyright Case Studies
Now we’re going to take a look at four case studies related to copyright law. Some laws are statutory laws, meaning the rules are all written down. But complicated questions are often decided in case law and precedent, which means court decisions are based on what was decided in similar cases before. For each of these case studies, decide what you think should happen.
Case Study #1: Times Square Street Photography
This photo is from a series of portraits taken by Philip-Lorca diCorcia in Times Square between 1999 and 2001. Since it is legal to take pictures of people in public, the U.S. has a long tradition of street photography. Street photography is all about candid moments, and usually people do not know they’re being photographed. The man depicted in this photo, Erno Nussenzweig, was not pleased when he later found out about this portrait, especially since it was displayed at a prominent gallery and sold for as much as $30,000. He sued the photographer to end use of the photo, arguing that it violated his privacy and was a “graven image” that violated his orthodox religious beliefs.
What do you think? Should the photographer be allowed to continue displaying and selling the portrait if the person depicted in the photo objects?
✓ Review: Is it generally legal in the U.S. to take photographs of people in public places without their knowledge?
Case Study #2: Haiti Earthquake
This photo was taken by freelance photographer Daniel Morel after the devastating earthquake in Haiti in 2010. Back then, you could not upload media directly on Twitter, so people used third-party services like TwitPic to share photos. Morel posted the photo to TwitPic as the breaking news event unfolded. An editor with Agence France-Presse — a wire service similar to the Associated Press — saw the photo tweeted by a different Twitter user who claimed it was his photo. AFP distributed the photo to its clients, which are mostly news organizations, and the photo was published worldwide. When Morel sued for copyright infringement, AFP argued that the company had thought they properly got permission to distribute the photo, and photographers give up some rights to their own work when they post on social media.
Who do you think is to blame? Should news organizations be held responsible for not fully investigating the true copyright of an image found on social media?
Case Study #3: Obama Hope Poster
On the left is a photo of former President Barack Obama taken in 2006 and distributed by the Associated Press. On the right is a version of the HOPE poster by artist Shepard Fairey, which became iconic during the 2008 presidential campaign. In 2009, the AP took legal action against Fairey hoping to reach an agreement for compensation since the artist had not asked for permission to use the photo. Fairey argued that it was fair use.
Do you think this use counts as fair use?
✓ Review: What are the four factors of the fair use doctrine? How might each factor apply in this case?
Case Study #4: Monkey Selfie
British photographer David Slater went to Indonesia to take photos of the endangered Celebes crested macaques. A monkey managed to take a photo of itself while the camera was on a tripod, and this started going viral as the “monkey selfie.” Wikimedia Foundation, which oversees Wikipedia, uploaded the photos and claimed they were public domain since animals can’t own copyright. The photographer argued that he owned the copyright since his work was responsible for the creation of the photo. As this dispute got some attention, animal rights group PETA sued the photographer on behalf of the monkey, arguing that the monkey owned the copyright.
How do you think the courts should decide — should the copyright belong to the human photographer, the monkey, or no one (public domain)? What makes you think so?
🗨 For each of the four case studies above, you be the judge: What do you think should happen and which side is right?
This video gives an audio overview of how each case turned out: