With deadline only two hours away, the staff of The Reflector, Mississippi State University’s student newspaper, was at a crossroads.
A freshman student had been in a car accident, striking and killing a sophomore, and was charged with driving under the influence of alcohol. Unable to obtain her booking mug shot, the newspaper staff was considering running a photo of the charged student from Facebook.com. Facebook is an online directory that connects people through social networks at schools. Students can post photos and profiles of themselves on the site, and the accused driver appeared to have done just that.
Editor in Chief Elizabeth Crisp thought the newsworthiness of the story merited running the photo, which she said would have given the coverage a hard-hitting personal element.
“I think it puts a face onto it,” Crisp said. “It made it a little more real.”
Frances McDavid, The Reflector‘s adviser, recommended the students consider the risks involved with running the photo.
News Editor Sara McAdory said the staff had two main worries: misidentification and copyright issues.
“We didn’t want the wrong picture up there.” McAdory said. “The issue was whether or not it was really the girl. We were pretty sure it was but you never know. People can post anything.”
The other question, McDavid said, was who held the photo’s copyright and would the paper’s use of it constitute a “fair use.”
With no clear answers available before deadline, Reflector staff said they decided not to publish the student’s picture.
A different approach
When staff at The Miami Hurricane was faced with a similar situation they decided to run photos from Facebook.
In November, photos of several University of Miami students who indicated they went swimming in a campus lake ‘ an act forbidden by the university ‘ appeared on a fellow student’s Facebook profile. Patricia Mazzei, Hurricane editor in chief, did not hesitate to run them, accompanied by the headline, “Caught on Facebook.”
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. It was a matter of public safety ‘ we’ve had two students drown [in the campus lake] before,” she said.
Officials at Facebook disagreed, as evidenced by a letter their attorney, Chris Kelly, sent to Mazzei.
“The mere assertion that something is newsworthy does not invalidate the copyright,” Kelly said.
The letter stated that The Hurricane had no right to publish the material from Facebook and must immediately remove it from their Web site. Hurricane editors had not complied with the request as of early December.
Facebook also objected to The Hurricane‘s decision to tag the photos and profiles taken from their site with “Courtesy of Facebook.com,” which Kelly said implied that Facebook supported or endorsed the article.
Mazzei said the paper ran a follow-up article in its next issue clarifying that Facebook had nothing to do with the story.
In addition, Kelly said the use of the material violated the copyright interests of Facebook and the user who posted the photos, as well as the privacy interest of those in the photos. It also constituted a breach of Facebook’s terms of service, which all users agree to when becoming a member of the Web site.
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.
Mark Goodman, executive director of the Student Press Law Center, said it is doubtful Facebook’s claims based on its own copyright would hold up in court.
“I think it unlikely that a court would find the use of an image of a Web page that is accessible to thousands of people, for illustration of 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.”
However, even in a newsworthy situation, printing a photo taken from a social networking Web site could violate the copyright of the owner of the photo, said Dona Gilliam, a professor at James Madison University and an attorney who specializes in entertainment law and intellectual property law, including copyright and multimedia.
“The pictures put up on the Web are owned by the person who took them,” Gilliam said, “and that person maintains copyright for life plus 70 years.”
Gilliam said it is better to err on the side of caution unless the rightful owner of the picture can be asked permission to use it. She added even that can be tricky when Facebook, or similar sites like MySpace.com and Friendster.com, are involved because “there is no way to know who put it there.”
“Just because people upload things doesn’t mean they give consent for use [of their copyrighted work],” Gilliam said. Since 1989 all original works are copyrighted whether they have a copyright notice or not, Gilliam said.
But there are some instances where permission may not be necessary because using the copyrighted image would be a “fair use.”
Facebook in the newsroom
The Reflector and The Hurricane are not the only collegiate newspapers using Web sites like Facebook as a resource in the newsroom.
“It’s an invaluable tool,” said Amber Corrin, editor in chief at West Virginia University’s The Daily Athenaeum. “It’s like any other piece of technology ‘ you wonder how you got along without it before.”
Corrin said her reporters use Facebook only as a way to find sources. The Web site makes finding sources infinitely easier for reporters, she said, but The Daily Athenaeum would never publish a photo from the site or take any posted information as fact.
“That’s pretty questionable,” Corrin said of running Facebook photos. “It’s not credible enough to use for anything other than sourcing.”
David Cross, editor of The Lantern, Ohio State University’s daily newspaper, said he agreed that social networking Web sites are a good way to find sources.
Cross said The Lantern used Facebook to find sources for the paper’s stories on Julie Popovich, a part-time Ohio State student who disappeared earlier this year from a campus-area bar. Even though Popovich was not listed in the school’s student directory, Cross said Lantern staff members were able to find her friends and subsequently who she was with the night of her disappearance using her profile on Facebook.
Despite the usefulness of social networking Web sites, Cross, like Corrin, has doubts about using them for anything other than a way to find sources.
“We’ve never used a picture from Facebook,” Cross said, because he said he is not sure the Web site is always accurate.
Corrin, Crisp, Cross, McAdory and McDavid all said Facebook is a legitimate newsroom tool.
“I look at it as an extension of the campus directory,” Crisp said. She added that no source has had a problem when they find out they were tracked down using Facebook.
“It’s put out there for the public to consume,” she said.
What the Web sites say
Kelly, Facebook’s lawyer, said the Web site has a license from users through its terms of service that allows his client to use the material members post, including photos. But that license does not grant Facebook the right to allow others to use it.
“As a matter of policy we would not sublicense users’ material, even for the student press,” Kelly said, referring to the Hurricane article.
Gilliam said the above statement about reproducing photos means Facebook is claiming a nonexclusive license to display photos on its Web site. Facebook is not taking an assignment of rights, she said, just a license.
“An assignment of rights would transfer the copyright of the photo to the publisher in exchange for royalties ‘ [This] is a mere license to use not a transfer of copyright,” Gilliam said, meaning whoever took the picture owns it, despite the fact it is displayed on the Internet.
Gilliam said it is important that Facebook users remember to be careful when posting photos on the Internet.
Even with Facebook’s user agreement and copyright law, Gilliam said, there is no one to stop people from using Facebook photos for reasons the poster may never have thought of, like having a newspaper print it in conjunction with a news story.
As to privacy concerns for using photos posted by Facebook users, Facebook Spokesman Chris Hughes said, “There is no general waiver of privacy when a photo is posted, but users do clearly know and intend that their photos will be viewed by others.”