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.
No, fuck off https://t.co/45gbtPxHQC
— Max Robinson (@DieRobinsonDie) May 27, 2018
But the request seems to have been perfunctory because Fox News used his content anyway.
— Fox News (@FoxNews) May 28, 2018
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.
Do you work for “credit” or does @FoxNews pay you? Which part of “no” did you not understand? Under #copyright law use after being told not to is eveidence of willful infringement with damages up to $150,000. Stop asking if people “are OK” and then disrespecting their rights.
— Mickey Osterreicher (@nppalawyer) May 28, 2018
Photographers started tweeting at Max Robinson to protect his IP and lawyer up. Even “copyright troll” Richard P. Liebowitz reached out.
— Liebowitz Law Firm, PLLC (@liebowitzlaw) May 28, 2018
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