Today’s front page of The Los Angeles Times finally includes the face of Weihan “David” Wang of Fremont, Calif., one of six people killed in the deadly Isla Vista rampage carried out by Elliot Rodger over the weekend.
Wang is also one of three Asians stabbed to death by Rodger. While the LA Times quickly published images of all of the non-Asian victims, the newspaper held off in publishing information about the others. Some Asian Americans, including journalists, wondered why.
The simple answer is that the newspaper is waiting to get photos or permission from family and friends to use images found on social media platforms, including Facebook. Until that happens, the newspaper does not believe it can legally, or ethically, publish the photographs. Even though other news outlets have.
“We don’t know where other outlets got their photos, and we have no way to know what steps they took, if any, to get legal clearance,” Henry Fuhrmann, Assistant Managing Editor of The Los Angeles Times, wrote in a Facebook comment in response to questions about a lack of information about the three Asian victims. “Different organizations apply different standards. But for legal reasons, our newsroom does not simply copy images from Facebook or other social media; we aim to respect the copyrights held by others. So here, we’ve had to rely on photos provided by families and friends; lacking those, we’ve had to be creative. In one case, I’m told, our photographer took an image of a picture that was included in a public memorial. And as I noted above, we’ll keep adding photos to the online biographies as we get them.”
Fuhrmann’s right. Not only may it violate US copyright law to re-publish photographs found on social media platforms, it is also unethical for journalists to do so.
The issue pops up continuously in newsrooms, but especially after major events like Friday’s tragedy. Some journalists believe that images become part of the public domain once they are posted on social media. This is inaccurate; whoever took the photo owns the rights. Those rights attached to the photographs the moment the camera button was pushed and the image became “fixed” in some tangible way.
Some may argue that it is fair use for news organizations to use the images. The use of the photographs for news purposes may satisfy one element of the fair use doctrine, but there are other factors that must be taken into consideration:
- Whether the news value or public interest outweighs the copyright owner’s protections. If a dangerous suspect is at large, publishing an image found on Facebook may likely satisfy the public interest element of the fair use doctrine. Publishing an image of a victim, may not;
- Whether the image is being used for educational purposes, such as by academics or non-profits;
- Whether the image is being used as a form of criticism, such as parody or satire.
Of course, copyright law is complicated. Factors such as how much of the original work is used and whether the work is being sold also come into play. And, interestingly, Facebook’s terms of service, for example, includes a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license” to use content uploaded by users; this license does not carry over to all users, however. In other words, Facebook can re-publish users’ works, such as images, that are uploaded to the site, but that license does not likely extend to news organizations, journalists or others who have Facebook accounts.
When it comes to re-publishing images found on social media, the safest bet for news organizations to make is doing what the LA Times is doing: Hold off on publication until permission to re-publish the image is granted.
Waiting to publish may not satisfy reporters under deadline pressure or a public hungry for information, but it’s the ethical (and likely legal) thing to do.