If you have Internet access, if you know somebody with Internet access, if you’ve been standing near somebody with Internet access — then you’ve already seen, probably multiple times, the Viral Falling Bear Picture.
It’s a superb moment-captured shot, the work of a Colorado student photographer, Andy Duann, who (as he describes in this interview) hustled without even taking time to put on socks, to be in exactly the right spot when agents from the state Parks and Wildlife Department tranquilized the campus interloper and caught him in a net.
But getting a 200-pound-bear out of a tree may be simple compared with unscrambling the ownership issues that have arisen concerning the photo. As the shot began blowing up on the Web — “memes per hour” is the modern validation that you’ve created a classic — the Colorado Independent newspaper started getting calls from other media outlets that wanted a copy. (How refreshing — actually getting permission to use a photo instead of just stealing it!)
The Independent‘s faculty adviser, Gil Asakawa, acknowledges that the newspaper — believing it owned Duann’s photo — gave consent for other outlets to use it. At least one paper, the Denver Post, agreed to pay for a copy.
The Copyright Act provides that the “creator” of any tangible creative work — a photo certainly qualifies — owns that work from the moment of creation. So the starting assumption is, the photo belongs to Duann.
The Act provides two ways, and only two ways, in which the creator can lose ownership of his photo: (1) by signing over the rights in a written agreement, or (2) because the photo belongs to his employer as a “work made for hire.”
Initial news coverage of the situation does not mention any written agreement, so for the sake of this exercise, let’s assume there was none. Is it still possible that Duann’s photo belongs to the newspaper as a “work made for hire?”
Let’s look at how Duann and the adviser characterize his relationship with the paper, because that relationship will be decisive. Asakawa identifies Duann as being “on staff.” Duann describes being on staff as an informal relationship, like joining a “photo club.” Both agree that Duann was unpaid.
In the absence of a written contract, the Copyright Act says a work can be “for hire” — and therefore the property of the employer — only if it is “prepared by an employee within the scope of his or her employment.”
The Supreme Court told us what this means in a 1989 case, Community for Creative Nonviolence v. Reid. The Reid case involved ownership of a sculpture commissioned to draw attention to the plight of homeless people in Washington, D.C. When it was finished, both the sculptor and the advocacy group that contracted for his services claimed they owned it.
The Court decided that the sculpture did not fit the definition of a piece of work “prepared by an employee within the scope of his or her employment.” Therefore, although it was undisputed that the artist got fully paid, the nonprofit could not claim ownership as a “work made for hire.”
The justices looked at what it means to be an “employee” versus what it means to be an “independent contractor.” The most important factors — does the employer control the time and method in which the work is done? — pointed against “employee” status.
The sculptor worked in his own studio on his own schedule using his own tools, with the freedom to accept or reject additional assignments. His relationship with the Community for Creative Nonviolence did not look like “employment.” It looked like independent contract work.
As an independent contractor, the Court concluded, the artist owned the work unless he’d signed away ownership in writing.
News organizations that employee freelancers may think they have “ownership” of the freelancers’ work when the work is submitted for publication. Without a written agreement, they don’t. What they have is a “license” to use the work for a limited purpose; ownership remains with the creator. It’s like buying a ticket to a New York Knicks basketball game. You can’t yank up the chair and take it home. You have a “license” to occupy that seat for the duration of one game; ownership (and the chair) stays with Madison Square Garden.
Based on the Reid factors, it appears implausible that Duann’s photo could qualify as a “work made for hire.” He went to the bear-capture scene on his own, not on assignment from his employer. No financial or tax arrangements make Duann’s relationship with the Independent look like “employment.”
As the owner, Duann had the right to decide who, if anybody, got to reuse his photo and under what terms.
Everyone appears to have acted with good intentions — the student, to get his newspaper a terrific action shot free of charge, and the adviser, to get his student a credit-line in a bigger newspaper (and Asakawa told Poynter’s Andrew Beaujon that any money made from the sale would go to Duann). So this flap ought to get readily resolved short of the courthouse.
And it ought to remind all student publications to clarify the terms of employment and ownership, to avert just such disputes in the future. (One model for allocating rights between student creators and their publications appears here.)
As a postscript, it is entirely possible that — once Duann’s photo became an Internet sensation (so much that it froze the Independent‘s website) — other media organizations could then have republished the shot without permission or payment in a story about the phenomenon, under the doctrine of “fair use.”
If a photo itself (or video, song or any other copyright-protected work) becomes the subject of news coverage, then it is defensible under the Copyright Act to republish as much of the work as is necessary to illustrate the point. For instance, if you are writing a story about the (recently settled) copyright litigation between the Associated Press and the creator of the iconic “Obama HOPE” poster, you are well within the boundaries of fair use to reproduce the disputed works to illustrate the story, even without consent from the owners.
If other media organizations were writing about the bear being captured, then permission (from the rightful owner) was necessary. If they were writing about the overnight-sensation popularity of the photo, then permission probably was unnecessary.
Simple as getting your head out of a hunny jar, right?