A Florida court’s refusal to dismiss a commercial photographer’s claim of copyright infringement is the latest reminder that not every photo posted on Facebook necessarily was put there legally — and it’s not legal to “borrow” without the rightful owner’s consent.
G. Mitchell Davis was hired beginning in 1996 to photograph sports and entertainment events at the Tampa Bay Arena for publicity purposes. (The facility is now known as the Tampa Bay Times Forum, and is referenced throughout the court case as “the Forum.”)
Davis’ contract with the Forum entitled the operators of the arena to use Davis’ photos for purposes including “newsletter, advertising, display prints, broadcast and the venue website.”
But the contract didn’t say anything about third-party social networking sites. And when Davis learned in January 2011 that Facebook had changed its technology to enable visitors to download high-quality copies of photos, he served notice on the Forum to pull down his pictures from galleries on the arena’s Facebook page.
The Forum refused. Davis filed suit in U.S. District Court for the Middle District of Florida, claiming both breach of the parties’ contract and copyright infringement.
On June 11, U.S. District Judge James S. Moody Jr. issued an order declining to throw out Davis’ claims. The judge ruled that Davis had sufficiently alleged a violation both of copyright law and of his contract for the case to go forward.
(Side note: The case involved a total of 255 photos, 40 of which Davis had registered with the U.S. Copyright Office and 215 of which he had not. Although the claims involving the 215 unregistered photos were dismissed, the judge noted that Davis still may register the photos, even today, and refile those claims. His eligibility for money damages will be somewhat limited as to the unregistered photos, but note that a copyright claim can proceed even if the photos are registered after the infringement.)
The case is at a very preliminary stage. All that was decided June 11 is that Davis’ case cannot be dismissed without more fact-finding. The Forum may ultimately prevail by proving that its Facebook postings were covered within the scope of the parties’ contract.
But however the case comes out, Davis v. Tampa Bay Arena, Ltd., is a wake-up call for anyone who believes that downloadable photos on social networking sites are always fair game to reproduce on journalistic blogs and websites.
It is very difficult to escape liability for copyright infringement on the grounds of ignorance. So, the fact that the Forum put the photos on its Facebook page does not automatically immunize a blogger who downloads Davis’ photos and slaps them onto his own website.
Journalists tempted by photos on social-networking sites that clearly appear to be the work of professionals — e.g., posed wedding or graduation portraits — should ask themselves whether the creator of the Facebook page is likely to be the rightful owner of that shot. Just going out on a limb here, your best friend Stinky from high school probably wasn’t backstage when Sandra Bullock held up her Academy Award. If not, then the holder of the Facebook account is not in a position to consent to the photo’s republication. If you want to use the image, you’ll need a “fair use” defense that holds up against the rightful owner, not against Stinky.
On the flip side, the Davis case also is instructional for professional photographers, or those who hope to be. Just giving a buyer a “license” to use your work in certain contexts does not mean that you’ve signed away your ownership. Unless the photo is made “for hire” (as part of a salaried employment relationship) or ownership is transferred by written contract, then it’s presumed that the creator retains the ultimate right to control how the photo is redistributed.
Additional note: Ironically, the Davis photos now are fair game for republication — if what you are writing about is the lawsuit. Once an image itself takes on newsworthy value, then reproducing it to accompany a news story about the image is a classic “fair use” under the Copyright Act.
Note, too, that merely linking to someone’s work is not the same thing as republishing it — which is why the easy-download feature on Facebook was key to Davis’ claims. You are welcome to post a link taking viewers off-site to Davis’ portfolio of work. It’s only when you treat the photo as your own — you save a copy locally and display it on your site instead of linking back to the original — that copyright law is implicated.
For more on the defense of fair use and how it applies to journalistic republication, check out the Student Press Law Center’s Guide to Fair Use.