He Said No, Fox News Used His Images Anyway

He Said No, Fox News Used His Images Anyway

Update: Fox News says they legally obtained the footage through the AP.

Over the weekend, Ellicott City, Maryland was pummeled by massive rainfall, which triggered devastating flash floods through the historic district of town. Resident Max Robinson was trapped in an apartment building near Main St and Maryland Ave when he started documenting what transpired on Twitter.

As the social media coordinator and journalist, Robinson was no stranger to social media norms and intellectual property rights. So when he received a request for free publication of his work on “Fox News Network, LLC &  Fox News Edge affiliates use on all platforms” in exchange for credit, he responded quickly and tersely.

But the request seems to have been perfunctory because Fox News used his content anyway.

The National Press Photographer Association’s General Counsel and photographer advocate Mickey Osterreicher didn’t take kindly to the blatant disregard, accurately pointing out that under U.S. Copyright Law 17 U.S. Code § 504, willful infringements can lead to statutory damages up to $150,000 per image.

Photographers started tweeting at Max Robinson to protect his IP and lawyer up. Even “copyright troll” Richard P. Liebowitz reached out.

Ever since Daniel Morel won a $1.2m judgement against AFP, media organizations have been wary of posting content found through social media. The practice of assigning a junior producer to acquire free rights through a tweet or DM is sadly still prevalent – particularly when it comes to breaking news – and is certainly not confined to Fox News. But the blatant use of Robinson’s photo/video after he specifically denied them permission has become pretty rare given the huge legal liability that it presents.

Statutory damages are only applied to content that has been registered with the U.S. Copyright Office. But content creators have up to 3 months to register their works after initial publication for infringements that occur prior to registration. Attorney Leslie Burns commented, “If one registers a work after the 3-month window, the one can still get statutory damages but ONLY for infringements that start (not just that are discovered but that actually start) after the registration.”

In other words, register your copyright.

Update: The article previously and incorrectly stated that the infringed only have one month to register prior to a copyright violation. h/t Leslie Burns

Update 2: The article incorrectly stated that statutory damages can be awarded up to $150,000 per instance. It is per image. 

Update 3: Clarification regarding statutory damages and the copyright registration window added

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This article was written by

Allen Murabayashi is the Chairman and co-founder of PhotoShelter.

There are 38 comments for this article
  1. Leslie Burns at 5:30 pm

    PLEASE STOP MISQUOTING THE LAW. There is no “one month after learning of an infringement” exception to registration timing! That is entirely wrong.
    If work has been PREREGISTERED under section 408(f) but not yet registered, then there is a one-month window, but otherwise there is not. See 17 USC § 412 which says: […] an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement […]

      • Leslie Burns at 8:37 pm

        It’s still wrong.
        A creator can register the work at any time. However, if a work is registered within 3 months of FIRST publication then it is as if the work was registered on the date of first publication and any infringement after that can get the statutory damages. If one registers a work after the 3-month window, the one can still get statutory damages but ONLY for infringements that start (not just that are discovered but that actually start) after the registration.

      • Leslie Burns at 8:49 pm

        It’s still wrong. This stuff is complicated which is why it’s a good idea to talk to a copyright lawyer before posting things like this. Here’s the deal…

        Statutory damages are not “only applied to content that has been registered with the U.S. Copyright Office” but rather those damages (and attorneys’ fees and costs) are only AVAILABLE to works that are timely registered. One must register a US work before one can file suit. Period. However, the damages available vary depending on the timing of the registration.

        Also, “content creators have up to 3 months to register their works after publication” is misleading. One can register a work at ANY time after creation. A work that is registered within 3 calendar months of its first publication means that the owner can elect to receive statutory damages for any infringement that starts after that date of first publication. But if the registration is after that 3 month window, then infringements before the registration cannot get statutory damages (or attorneys’ fees and costs) but any infringement that starts after that registration can.

        Hopefully that will help…

    • Allen Murabayashi Author at 6:57 pm

      Can I claim the holiday as my excuse? I didn’t think so.

      Thanks for reading my mind and fixing my spelling.

  2. J J Dinan at 8:56 pm

    As a professional photographer with specific skills, little of my work is available. The work I have published on my blog or on my Facebook page, I know about being ripped off. When I first began as a fashion+portrait photographer, my work making photoshoots for my models was always showing up everywhere. One in particular was a portrait I made of a girl which the girl showed to a client to get work, the store in question had their whole publicity based on that photo which they used without reserve; even their Store Front used a huge copy of the picture as their TM sign. In those days, the idea of suing someone cost so much to do that I just forgot it and moved on.

    • Ann at 8:54 am

      While Liebowitz is best-known for it, there are other attorneys who will take these kinds of cases on contingency.

  3. Mike at 12:36 am

    Interesting question,…as I watched this unfold today. From the time that Fox was told no,…until the time they posted his footage. Did the owner of the footage give anyone else permission?, specifically did he give permission to any wire services that FOX may be a subscriber to? If no, then, by all means, he is owed some money for unauthorized use. If yes, then how do you reconcile giving all rights to someone, without thinking that someone can now legally give or sell rights to someone you hate. All without anything more than a tweet

  4. Harry P at 9:30 am

    Contact Richard Liebowitz, the copyright lawyer. I’m pretty sure he’ll find a satisfying solution. That’s exactly what he does. It doesn’t cost anything to hire him, but he’ll take his cut from the earnings, which will still be worthwhile to you.

  5. Ted H. Funk at 12:48 pm

    Any so-called “journalist” in charge of “social media” who replies in such an insolent crude way
    to a respected News Organization like Fox deserves to be brushed off. Besides, countless images
    on iPhones or similar are taken all the time and sometimes submitted to be used on TV (just having that to brag about should be sufficient for those people). Marking an image with the “Copyright” symbol in front of or along with it protects the photographer’s rights, but I don’t know if this would be possible to do with an iPhone or similar. Pros do this all the time, as I did!

    • Allen Murabayashi Author at 12:53 pm

      Putting a copyright notice doesn’t provide for statutory damages (up to $150,000 per image + legal fees). Non-registered images are typically only covered for compensatory damages, and no legal fees.

    • Ann at 8:59 am

      So it’s okay to steal from somebody if they respond rudely to a rude request? If I walk into a restaurant and ask them to feed me in exchange for getting credited, I’d expect to be thrown out. If I ask an author to write for my blog in exchange for credit, I’d expect to hear some rude things.

      But sadly, big corporations are so used to being able to get away with whatever they want, a lot of people have internalized the idea that it’s fine if corporations steal from individuals.

  6. Audrey at 12:50 pm

    I’m wondering how you might actually register the copyright during a traumatic event? Is there a waiver for this? “OMG! I’m trapped in a flash flood with no internet!! Let me stop and try to register this footage as my apartment is filling with water and cars are floating down the street!”

  7. Audrey at 12:53 pm

    I’m wondering how you might actually register the copyright during a traumatic event? Is there a waiver for this? “OMG! I’m trapped in a flash flood with no internet!! Let me stop to register this footage as my apartment is filling with water and cars are floating down the street!”

  8. Tom Stites at 6:44 pm

    Allen,

    So, I see you haven’t had the decency to update or remove this blog entry due to the fact that Fox News legally obtained the images through the AP.

    Seems you have earned the moniker of “Fake News”…well done, sir…and I use that term very loosely!

    Have a nice day…

    • Allen Murabayashi Author at 7:07 pm

      PetaPixel made me aware of this a few hours ago, and I’m in the process of verifying.

      But yes, let’s resort to name calling and ad hominem attacks in the interim!

    • flexible fotography at 8:34 pm

      if Fox got it from AP then AP broke copyright law by dealing content not their own to a third party. and Fox broke the law twice, by already knowing they weren’t supposed to use it AND by being the third party to the APs wrong action.

      but then, should we expect anything else from Faux News?

  9. Fred at 7:47 pm

    Did you check whether Robinson put his work into any wire service from which Fox could have legally obtained the right to use it?

  10. Deirdre Ryan at 8:05 am

    I had a copyright issue and my paperwork was in the process. So even though it was in the process, I still had a case. But for something like this, the guy clearly said no. I’m posting so that I can keep updated.

  11. Ray at 11:08 am

    No one has mentioned ‘Fair Use’ editorial use where copyrighted images may legally be used without permission. I do not think there is any argument that this was a legitimate news story. Denying permission, in this instance, does not supersede the legally allowed use for news reporting under this exemption.

    I’m not making any judgement whether this is right or wrong, only going by copyright law.

  12. Andrew at 9:28 am

    Copyright is very complicated and anyone with a valid claim should seek counsel and not guess at it. Having said that, I have used numerous attorneys in the USA, UK, Canada, Australia and EU pursuing my infringements and there is one thing they all share in common, they like to cherry pick the cases. Just because you contact them it doesn’t mean they will take the case. Most attorneys have plenty of work these days and won’t take on anything that doesn’t ensure a good payout for them. There are numerous attorneys that take cases on contingency basis, not just a few…they are everywhere. You need to interview your attorney, get a sense of their strategy (they all work differently), and also go over the retainer agreement with them. The retainer agreement is always written in their favor and it’s always negotiable. I have rewritten large chunks of my attorney agreements. If they aren’t working on your cases you need to be able to walk away and take your cases elsewhere without penalty. What about the split? mine are at 25%/33%/40% depending on how far the case goes. If they are just sending letters and negotiating before filing a case then not a penny more than 25%. If they actually file the case and go to court of course they deserve a bigger payout. The great majority of clients settle up front without the hassle of a trial. Remember, going to court ties up the plaintiff as well as the defendant and should be considered the last option, not the first! If you haven’t registered your work in a timely fashion you will be in a much less favorable position.

  13. Dave at 6:25 pm

    It is possible that Fox might not have published the photo had the copyright owner responded to their request with a bit more decorum and the absence of foul language.

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