JonBenet: Copyright, Fair Use, And Public Domain
By Mickey H. Osterreicher, Esq.
BUFFALO, NY – An interesting sideshow to the media circus over the arrest of JonBenet Ramsey murder suspect John Mark Karr, who was released without being charged in her death, is the copyright dispute that has reemerged over the ownership and use of photographs and video of the little girl herself.
“Ninety percent of those copyrighted images (of JonBenet) have been made available through ZUMA Press,” said its founder, Scott Mc Kiernan, himself a photojournalist. According to its Web site, “ZUMA Press is the largest independent press agency and wire service of award-winning pictures and image services for editorial and creative professional use.”
The problem in this instance stems from the fact that since the case first became news in December of 1996, the Associated Press, Reuters, and Agency France-Presse, among others, have distributed many of these same images without the permission of the copyright holders or their agent, ZUMA Press. Now, renewed interest in the story has only exacerbated the copyright issue. AP, Reuters, and AFP have issued “mandatory kill” notices to their clients advising them to remove the images from their archives, servers, and databases, and that ZUMA Press is the agent representing the copyright owners.
The U.S. Copyright Office states “one of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.” “This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code).” “One of the more important limitations is the doctrine of ‘fair use.’” “Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.”
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair.” News reporting is included in that list. Section 107 also sets out four (4) factors to be considered in determining whether or not a particular use is fair: the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
A court using the above factors in determining whether or not the use of the JonBenet photographs and video was “fair” might be analyzed in the following way: The purpose and character of the use appears to be for news purposes and is more commercial in nature than it is nonprofit. The photographs have been used in whole and the video appears to be used in snippets. For arguments sake we should assume that broadcasts of these tapes have shown a substantial portion in relation to the copyrighted work. The effect of the unauthorized use of the photographs and tapes has dramatically affected the potential market and value of the copyrighted work. Given the fact that these pictures were first seen 10 years ago, it certainly cannot be said that this is a “new” story. Therefore, I believe that the court would find that the use of the material was not fair use.
The fact that the source of the copyrighted material has been credited or acknowledged is not a defense against copyright infringement. There is no substitute for obtaining permission from the copyright holder or someone (as in this instance, ZUMA Press) who represents them.
There have also been a number of questions raised by newspapers and magazine picture editors about the material being in “the public domain.” Unless material is protected by intellectual property laws (such as copyright, trademark, or patent law) it is in the public domain. That means anyone is free to use it without permission.
Generally most such works enter the public domain because of old age. Included in this group would be any material published in the United States before 1923. Other works remain in the public domain because they were published before 1964 and the owners of the works did not renew the copyright. A revision to the copyright law required renewal of the copyright for any works published before 1978.
Other material falls into the public domain because it was published without copyright notice, made necessary by another revision of the copyright law for works published in the United States before March 1, 1989.
Lastly, material can be in the public domain because its owner made a conscious decision to place it there without any copyright protection.
Using this public domain analysis for the JonBenet photographs and video, it would appear that no public domain right exists since the works were created and published after 1964 and were, in fact, copyrighted.
There is no such thing as an implied copyright waiver, i.e. if a photograph has been used in violation of a copyright, the fact that the copyright holder did not seek to enforce the copyright at the time does not mean s/he waives his copyright. Copyrights must be explicitly waived, which is why so many organizations doing “work for hire” require photographers to sign such waivers as a condition of employment/assignment.
Section 106(A)(e) of the Copyright Act states, “. . . those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified.”
With the ease of access and the vastness of the Internet, the dissemination of copyrighted works without permission has created a dysfunctional system of copyright holders chasing violators all over the world. Digital images are cloned or lassoed on a regular basis, and then posted elsewhere or eMailed. Policing these violations becomes a full-time job, and that does not even take into consideration the time and expense involved in bringing a lawsuit. As stated above, the mere fact that some of JonBenet’s images have been seen around the world for more than 10 years does not make them public domain.
In October 2005, the Association of American Publishers filed suit against Google over its plans to digitally copy and distribute copyrighted works without permission of the copyright owners. What Google wants to do is turn the idea of copyright on its head by copying the works without permission and then waiting for a copyright holder to “opt out” of having their works distributed. In that case, as in the present one of the JonBenet photographs and videos, the underlying rule of copyright should remain: permission first, publication/distribution after!
Another question has come up regarding the distribution of some of the copyrighted material by law enforcement agencies at the time the crime was committed. According to ZUMA’s Mc Kiernan, “a detective had a small photograph of poor quality of JonBenet in a pink sweater with him at a press conference. This photograph was copied by many photojournalists. At no time did the police ever hand out any photograph (as for example, O.J. Simpson’s mug shot at the time of his arrest).” Even had the police disseminated photographs or video of JonBenet it is still incumbent upon those news organizations wishing to publish or broadcast such material to make a reasonable inquiry into who, if anyone, owned the rights to the photograph. An example of this would be if someone offered to sell you the Brooklyn Bridge: it would be foolish to pay for it until you knew that the person had the right to sell it to you in the first place.
Zuma has not taken legal action against any of the newspapers or television stations that ran the JonBenet images and other photos without payment or permission. Mc Kiernan has said that the agency is trying to negotiate licensing fees with various news organizations.
In order to avoid unnecessary litigation and the possible payment of monetary damages, it would be best that for anyone wishing to publish or broadcast any copyrighted material to contact the copyright holder, or someone representing the copyright holder, and seek permission for use the material before they do anything. For news organizations the Golden Rule of “do unto others as you would expect them to do unto you” should be the applicable statute for honoring copyrights.
Osterreicher has been an NPPA member since 1972. He is the chair of the NPPA Media Government Relations Committee and is also a member of the New York State Bar Association Media Law Committee. He has been a photojournalist for newspapers and television for more than thirty years in Buffalo, NY, where he now practices law.
A related story by Al Tompkins of the Poynter Institute for Media Studies is online here.