Turning the Tables on the Associated Press
The AP threatened to sue the Snapped Shot blog for reproducing their photos without authorization. But they didn't ask permission before they grabbed Ashley Dupre's pictures.
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The life of a blogger will occasionally resemble that of Buffalo Bill Cody’s stories of old. And, much like the lead-slingers of times long past, we sometimes get nicked.
For the past year and a half, I’ve been writing Snapped Shot, a blog that focuses on providing commentary, analysis, and the occasional exposé on professional photojournalism. Looking through the product of the photo newswire services daily and pointing out anything that seems out of the ordinary. Looking for possible counterfeiting in Lebanon. The ever-raging Rage Boy. Mystery missiles, unfired bullets, and playground munitions (oh my). All in all, it’s proven to be quite an entertaining hobby to keep my spare time occupied, and has introduced me to a terrific bunch of people.
Then, one day, a volley of proverbial bullets appeared on my porch, neatly wrapped in a FedEx envelope. The label said it all, the gunslinger having put their return address ever so neatly on the envelope. The Associated Press had sent me a friendly little care package.
The counsel for the Associated Press had fired the first warning shot, informing me that it was their opinion that Snapped Shot was in violation of their copyright.
The violation “Frequent and systemic,” they said. In fact, they said that I was so bad that they were going to forget all of their past condemnations of Abu Ghraib, and book me for the next flight over that way.
Okay, so I may have made up that last part.
Now, not having access to legal staff of my own—or the local Sheriff, for that matter—my first order of business was to try and assuage the gunslingers. I immediately took the site offline, along with every last photograph that was on there (including those that were my own).
I posted a notice that the AP content had been removed from the website, and hunkered down for an anxious weekend worrying about subpoenas and other not-so-hobbylike things.
To make a long story short, after going back and forth with some experts regarding the AP’s notice, I discovered that the process of disputing their warning letter would likely lead me to court, whether I was in the right or not. Did I mention that I don’t have a lawyer? True, number of the world’s second-oldest profession had written to offer their kindest advice, but most who wrote were unable to be of direct assistance. It looked like I was outgunned by a long shot.
In the old Westerns, the lone fighter would usually have single-handedly taken on the black hat-clad bad guys, and emerged victorious. The problem with trying this approach in the digital age is that the aforementioned bad guys have all of the guns.
The lone ranger, on the other hand, is merely armed with a keyboard and a cup of coffee. This makes the odds here somewhat less hopeful.
So, in the end, the only choice I really had was to cooperate with their demands, ensure that all of their content was removed from Snapped Shot, and hope for the best. “The best” being that this lone fighter gets to live to tell the story, of course. After all, I do have to put this “mere” keyboard to good use, don’t I?
After writing back to their legal team and informing them that I would cooperate with their demands, they agreed not to pursue the matter any further. This left me with a website that was largely threadbare, considering that much of the discussion to date had revolved around the visual aspect of the news wire service. But, armed with my trusty keyboard, I think I’m going to manage.
A week or so later, as I was getting into the swing of painting my pictures with words rather than hanging them in the digital saloon, I noticed that the press at large, including my fresh new acquaintances in the Associated Press, seemed to have stepped in a touch of a quandary.
As it was described, there was a certain woman who was involved in a certain New York scandal who seemed to have had some of her pictures reproduced by some very major news services.
Copyright experts asked about this apparent misappropriation of pictures noted that the newswires were walking in “dangerous waters”—a phrase which seems to be a common greeting amongst Copyright lawyers—by publishing her photos. These services were accused of taking something of tangible value and redistributing it for profit, without her or her photographers’ consent.
Hmm, that’s funny. Other than the “for profit” part, isn’t that exactly what they accused me of doing?
Interestingly enough, not every news service was enticed by the easy pickings on Ms. Ashley Dupre’s MySpace page. An internal European Pressphoto Agency report stated, “We refused to use these photos for legal and ethical reasons,” and that the republication of her photos might, as they describe it, “have some repercussions for those who were using these images.”
A shining example of the fine art of understatement.
Dupre’s legal counsel issued a press release on the matter within hours, putting every news agency that used the photos on notice that he’d be pursuing them for damages from the supposed destruction in resale value of her photographs, and he would work to ensure that “her likeness” is protected.
Now, it’s entirely possible that he’s trying to divert attention from the young lady’s alleged crimes, which is generally the lawyerly thing to do.
Regardless, the delicious irony of a multinational corporation being charged with the very breach that it had just gotten finished charging a lone blogger with was not lost on me.
While it’s amusing to see the tables get turned on the wire services, things remain unchanged for this lone fighter. I’ll still be here, watching the black hats with a steely gaze, waiting for the moment where it’ll be safe for me to ride off into the sunset.
It’s what the Duke would want.
Or was it Dick Cheney?
Brian C. Ledbetter is the owner, operator, resident extremist of Snapped Shot, a blog dedicated to the observation, analysis, and critique of the professional photo news wire services.
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13 Comments
Keith:Hello Brian, I’m sorry to hear about your problems with the AP. My wife and I have had a problem with them lately as well. We took a picture of a couple in 2006 for a magazine that my wife and I did not work for. We were asked by them to take their photo for a story coming out, and their staff photographer was not available. Now after a year and a half the couple is missing and their picture is all over the internet and television without our permission. AP said they got permission from the magazine that requested us to take their photo, but that magazine didn’t have written permission from us, and never contacted us to obtain permission. Now the AP will not get back to us. They say it is between the magazine and us, and it is not their problem.
Mar 24, 2008 - 5:24 am Sassenach:They will not return our calls or emails either. Is AP making money from this photo that they did not have permission to distribute?
Thanks for hanging in there. Of course, we all know that this isn’t really about copyright — it’s about who’s getting caught in lies and “creative editing.”
It would be great if you would enable Snapshots (snap.com), which allows users to preview links by rolling their cursor over them.
Mar 24, 2008 - 5:28 am Brian C. Ledbetter:Keith—I’m so sorry to hear about your trouble! The Associated Press charges money for access to their photography news wire, so in a sense, they make money on any picture that is transmitted by them. Furthermore, if it’s not “flagged” for editorial-only use, they also make money on the resale of the picture for anyone who licenses it through their AP Images resale service.
Have you been working with an IP lawyer on getting them to address your complaint? Having a big gun on your side of the table would probably help matters move along more smoothly…
Sassenach—Great idea! I’ll see if I can incorporate that feature into the site as soon as I get caught up with everything else over here!
Respectfully yours,
Brian Ledbetter
Mar 24, 2008 - 8:44 am JohnMc:Brian,
You might want to contact the EFF. From time to time they take on cases like yours in the public interest. And I would think your critique of photojournalistic content would fall under the provisions of Fair Use. You differ from Dupree in two critical aspects:
1) The content as utilized by AP by its very posting is now public not private. So long as you continue to critique the photos and not use them for personal gain you should prevail. That is copyright law.
2) You differ from Dupree in that you operate in the public realm with public content. Dupree on the other hand has not relinquished her rights to her property and quite honestly she has not sought being a public figure it was thrust on her.
Contact EFF see if they are interested.
Mar 24, 2008 - 10:16 am Bill Quick:It’s pretty simple. AP has lots of money and lawyers, and so they figure they can get away with whatever they want to do: Shut down impecunious bloggers for “stealing” their IP, then turn around and steal somebody else’s IP. Anything is possible with enough money, clout, and legal representation.
Mar 24, 2008 - 10:31 am Jennifer:I completely understand why you would back off in the face of such threats, given your position.
Powerlineblog.com is written by lawyers, so they don’t seem to have much problem with publishing photos.
Wasn’t it only a year ago that TMZ.com was being threatened with lawsuits and now they are on TV?
I’m not a lawyer, but it seems to me that if Michelle Malkin and everyone else on the internet can use photos, you might be able to as well. If you have any “grabable” assets, though, and lack the legal resources to fight the AP, it’s probably better to lay low.
I wonder, though, whether the AP targeted you just because you were publishing their photos or… because you were busting the MSM over their agenda-driven common practice of blithely publishing photos of “dustless” stuffed bunnies carefully posed on top of debris created by a missile.
I also wonder whether maybe you should write to other bloggers who may have received the same AP package that caused you to pull your stuff. If you haven’t reached out to others who are trying to do the work you are doing, then you are probably operating in the dark. And we all instinctively have a fear of the dark.
Mar 25, 2008 - 2:12 am Irish Cicero:Thanks for that. I’m new to this blogging lark and wasn’t sure how much trouble I could get into. There are images all over the internet. Unless someone disables the save function, why shouldn’t they be used?
Mar 25, 2008 - 5:02 am Amy Alkon:I’m not a lawyer, so I don’t know the exact details of what’s considered “fair use,” but personally, I don’t feel it’s ethical to post photos owned by others, except with permission. If you’re discussing photos, it seems okay to post merely a thumbnail with a link to the photo, but not the photo itself, as this is the fruit of another person’s labor, not your possession. I’m a syndicated columnist, and I don’t let people post my column without paying for it. This is how I earn my living, and if you want to run my column, not simply link to a part of it for discussion, you need to pay me.
Mar 25, 2008 - 7:09 am Amy Alkon:Iris, because people do use photos doesn’t mean they aren’t breaking the law or being unethical. Using somebody else’s work (except, say, as a thumbnail to drive people to the original photo for purposes of discussion) without paying for it is called stealing. The fact that many people do it doesn’t change that. I call this “Monkey See/Monkey Do” ethics.
Mar 25, 2008 - 7:12 am Valerie:Taking a purportedly unaltered “news” photograph and pointing out inconsistencies is the essence of “fair use.” The critique relies on elements of the photo. These threats are are a form of blackmail obviously intended to stifle the robust debate that is the foundation of our political system.
I should think the ACLU would take this case in a heartbeat. ; )
Mar 25, 2008 - 7:38 am james:Empower yourself with knowledge.
1) go to a bookstore and buy a law dictionary
2) look up “fair use” in the law dictionary *
3) note the statutes and keywords referenced there
4) go to law library and look up those statutes in the annotated U.S. Code, and your annotated state code. If you do not know how to do this, ask questions. It is easy to do. Law libraries are extremely well organized. Most major state universities have law libraries accessible to the public. Many county courthouses, state supreme courts, and federal courts have law libraries accessible to the public.
5) Read what the statutes say. Read the case law abstracts in the annotated text. Make copies to take home and study, and ponder, and strategize over.
6) look up related cases to get the details concerning facts, findings, and rulings.
7) if you hit paydirt with one or more of those rulings, “shepardize” those cases to make sure they have not been adversely affected by a more recent case.
* In this case, the internet can substitute for a law dictionary. However, I believe such a dictionary is a valuable reference for any home book shelf.
As I said, empower yourself with knowledge. Reject the “lawyer mystique”. Reject it. Other than reducing ignorance and mortal fear, I do not know where such research will lead.
You may just find recent federal case law with facts closely paralleling your case, a finding that “the critique relies on elements of the photo” followed by a ruling that republishing the photo as part of the critique is protected under fair use. You do not know until you look! Do not take the AP’s word for what the law says. They are the enemy. They seek to manipulate you, and your ignorance gives gives them considerable power. I have just revealed how to research this WITHOUT hiring a lawyer. I have just revealed exactly what a lawyer would do if he/she did not already know the answer, and they likely will not tell you the answer without money changing hands, no matter how friendly and comforting, or authoritative they may sound.
And if you do hit paydirt, you can, at your option, throw the ball back in the AP’s court, again, without hiring a lawyer, and see what they do next. Maybe they won’t do anything, seeing that you have the authority to operate your website as you have. If they want to fight, you now have authority you and/or a lawyer can fight back with, again, at your option. Also, if the authority is clear, you may be able to get attorney fees based on a claim that their action is frivolous and groundless. You do not know until you do the research. I have not done the research because I am not in your shoes. So, at this time, I do not know.
They do NOT truely have all the guns. I am not giving you advice. I am revealing some of how the system works, unveling the “lawyer mystique”, so to speak. This process is very well documented and is not hard for the logical mind to grasp.
One other thing, no matter the nature of the fight, if you chose to fight, do not broadcast your knowledge and strategy to the enemy (ex., on the internet - or anywhere else). Silence is power. Use it. Now, that is advice. But it applies to ANY conflict in ANY venue, not just the legal venue. This advice is very broadly, not narrowly offered. That said, the best response to this comment is; “Thank you”. Say nothing more, or nothing at all.
Good Luck.
Mar 25, 2008 - 11:36 am