Newspaper’s use of Facebook photos prompts angry letter

FLORIDA — The editor of The Miami Hurricane said she received an angry letter from a lawyer at after the student newspaper ran a front-page story featuring photos and text gathered from the social networking Web site.

The article in question, which ran Nov. 11, contained photos, captions and quotes from a University of Miami student’s Facebook posting about several students who went swimming in Lake Osceola, an act forbidden by the school. Facebook is an online directory that connects people through social networks at schools. Students can post photos and profiles of themselves on the site.

The Nov. 13 letter, written by Facebook lawyer Chris Kelly, said The Hurricane had no right to publish the material and ordered the student newspaper to immediately remove the article from its Web site. Hurricane editors have not complied with the request.

Facebook also objected to The Hurricane’s decision to tag the photos and profiles taken from their site with "Courtesy of," which Kelly said implied that Facebook supported or endorsed the article.

Patricia Mazzei, Hurricane editor in chief, said the paper ran a follow-up article in its next issue clarifying that Facebook had nothing to do with the story.

Mazzei said the staff considered the pros and cons of running potentially copyrighted material but decided "the story’s importance outweighed any other risks."

"We thought it was newsworthy," Mazzei said. "It was a matter of public safety – we’ve had two students drown [in the campus lake] before."

Kelly said he disagrees.

"The mere assertion that something is newsworthy does not invalidate the copyright," he said.

Kelly said he is confident his client would be successful in a lawsuit against The Hurricane, citing Facebook’s copyright interest in the overall look and feel of their Web site. But he said filing a claim is not necessarily the route Facebook plans on taking.

In addition, Kelly said The Hurricane’s use of the photos violated the copyright held by the person who took the photos.

Kelly said The Hurricane’s use of the Facebook member’s photos also constituted a violation of the Web site’s terms of service that all users agree to when they become a member of the site.

Those terms state that content from Facebook "may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means" without Facebook’s prior written permission.

"We’re claiming that the person who downloaded those photos [used in the article] violated those terms of service," Kelly said.

Mazzei said her staff spoke with their advisers, who said they had no problem with publishing the story.

Sig Splichal, a communications professor and Hurricane adviser, said he stands by the contents of the story, according to an article on the Hurricane’s decision to run the story in The Miami Herald.

Mark Goodman, executive director of the Student Press Law Center, said it is doubtful Facebook’s claims would hold up in court.

"I think it unlikely that a court would find the use of an image on a Web site that is accessible to thousands of people, in a story about the controversial activity depicted on that Web page, an infringement of Facebook’s copyright," Goodman said. "This seems like a pretty clear ‘fair use’ to me."

Sam Terilli, a journalism professor, said the paper had a legal and a journalistic right to use the photos in its story.

"You had a matter that was newsworthy, plain and simple," Terilli told The Herald. "If people are posting things on the Internet and thinking that’s private, they’re wrong."

by Clay Gaynor, SPLC staff writer