Avoiding copyright issues and staying safe when using photos and other content

Having problems getting appropriate photos to accompany stories? What about possible copyright issues that could arise from using these photos? Here’s some information that may be useful.

A great guide about uncertainty in using photos: When in doubt, don’t. Get written permission before using. With that said, there are times when Fair Use applies.

For questions about using photos (and other content) that give you that deep-in-your-gut warning, then writing to splc.org is important. At top center is a legal tab, “Get Legal Help.” 

There’s also the tab “Legal Topics” that when clicked on shows four topics. If you’ll go down to the fourth topic, “Ask SPLC,” you’ll see common questions answered.

The people doing the answering are attorneys who specialize in First Amendment issues. Their help is free. (If you feel like donating, please do so because splc.org is a non-profit organization.)

By the way, you don’t violate copyright by linking to other sites.

Now, on to questions asked by two of my mentees.

1. Student journalists are having difficulty getting photos to accompany articles. I (the teacher) can’t really hold them responsible with a grade for getting photos because of COVID. Suggestions? 

In the case of people, if you need a mugshot, ask the person interviewed to send one, even if it’s a selfie. Use the phone’s simple editing software to crop and edit the photo. If it’s a group, then maybe somebody could take it with their phone, or maybe even a group selfie. If it’s a place, perhaps the student reporter’s parent (or the student him/herself) could drive by and get a shot. An activity would be tougher. It seems like there’s always somebody taking photos. If that person could be contacted, ask him/her for permission to use one or more, and give him/her a photo credit. (If you’re using SNO and need to publish a mug shot: Create a rectangle 900 pixels by 600 pixels of any color you choose in your photo editing program then insert your mugshot on top. Then flatten the layers. Otherwise, your mugshot will be horribly distorted due to SNO’s preprogrammed 900 x 600 pixels setting.)

Another way would be to get photos from people’s accounts on FaceBook, Twitter, Instagram, etc. In this case, you or the student should have written permission to publish the photo on the newspaper’s website or print edition. Photo credits should be given. However, in the case of a business or public activity (festivals, churches, companies, etc.) photos are published with the hope they will be shared, used, and widely distributed by those interested in them. It’s still good to contact the site to ask for permission. An email reply is sufficient written permission. I’d not depend on oral permission, just written.  Always credit the photos to a person or to the site, such as FaceBook, YouTube, etc. A simple statement, such as Facebook photo, is sufficient photo credit, as is Used with permission of Joe Blow, for example.

In the case of reviews, (as opposed to news stories), my understanding based on previous correspondence with SPLC, JEA Listserv discussions, supervising my students’ use of images while I was a teacher/adviser, and study of the Student Press Law Center site (http://splc.org) is that a closely related photo, movie poster, image, etc, used with a review falls within what is permissible under copyright law (Fair Use) without asking for permission to use it.

I had a columnist who reviewed YouTube stars’ sites. We’d use photos from those sites in both the print paper and online after she received permission through email from the star. In the print paper we’d use the word YouTube as the photo credit. Online, since we had a preset photo credit line built-in to the site, it would come out The Magnet Tribune: YouTube.

Many years ago a student wrote a story about a character named “Lisa” in the cartoon Funky Winkerbean, and needed to contact the cartoonist. I contacted Tom Batiuk through the cartoon’s syndicate; he gave her a few minutes of telephone interview time. I bought her a long-distance phone card to pay for the call and she spoke to him. He snail mailed us drawings of “Lisa,” and we could use them with the credit line Used with special permission of King Features Syndicate. (Lisa had breast cancer, the subject of the student’s story.) This was in 2000 (I think), long before the cell phone era.

Another example: We received photos in spring 2019 supplied by the Texas Commission on the Arts, after my now-former school received the prestigious Texas Medal of Arts Award. The commission required us to use the photo credit line: Used with permission of TMAA Awards/(name of photographer). This is what we were required to put for all photos we used in print or online.

On many movie or TV network/cable network/celebrities’ websites, you’ll see a tab called Media or something similar. Those photos are put there with the intent for news media organizations to use in writing previews, stories, or reviews of movies and television/cable programs. Those published on their Facebook, Twitter, Instagram etc sites should have reporter requests sent to that site to ask for permission to republish.

Example: A student wrote a story on a notorious Houston murder a couple of decades ago that has defied solving. Part of her research turned up a Facebook site that was using scanned newspaper photos that included the name of the newspaper. We contacted the Student Press Law Center (splc.org) which replied: to protect you (adviser and the student paper) contact the newspaper. Well, it turned out that the paper was defunct and the SPLC had cautioned us about using the Facebook site images until we had written permission from the newspaper. The Facebook site told my student those photos were not their images and that they used them without permission. How we got around this was the student reporter photographed another student looking at the Facebook site on a computer. Now we have an original photograph containing the Facebook site, with the copyright owned by the student reporter. While my successor has allowed the newspaper’s website to lapse, the SNO interview about the column with my student still exists. Here’s the link to the interview: http://anchor.fm/snocast/episodes/Creepy-and-Unexplained-e2gj5g which was broadcast Oct. 31, 2018.

For 9/11 in 2001 we photographed the entire front page of the local daily and resized it to fit our newspaper page layout. With that photo we had an original photo of a newsworthy event and so had something we could use without any problems. In 2018 or 2019 (I don’t remember which year) a student wrote a feature on a former FBI agent who had investigated aspects of the 9/11 site in New York City, and we used a photo from a .gov (or maybe .mi) site to accompany the story.

Despite what people may say about “educational use,” there is no such thing in copyright law, nor is there a permissible word allotment in the case of text or a maximum of 30-second in the case of audio/video recordings. You could be served a “cease-or-desist” order or even receive a bill for royalties due for what the copyright holder considers unauthorized usage of text, photos, images, audio recordings, or video clips.

Keep in mind: use as little as possible to illustrate a point in a story or review and you should be on safe ground. What little you would use you could defend as Fair Use.

In the case of a music review, for example, very brief excerpts of the song’s lyrics are acceptable but not printing out the entire lyrics. Same with a podcast that discusses music. Just a brief excerpt of the recording. One defense of an accusation of copyright law violation is to show that an excerpt (or brief excerpts) used would not damage the ability of the copyright holder to make money from the music, lyrics or other item in dispute.

On YouTube, a person or organization filing a take-down order against your video can have ads appear on your site when viewers click on your video. This is to pay them for  your unauthorized use of copyrighted music. (This happened to us when we’d create video of school events and publish on our YouTube site. The workaround is to have just a few seconds of music, insert a transition, then on to the next thing.)

2. One of my students is writing about a person elected to a state-level position, She can’t find a photo that’s not copyrighted. I suggested she email the person to ask for a photo and to possibly get a quote, but the student brought up a good point: How do we phrase the question so the person doesn’t send us a photo that is copyrighted? 

Here’s some good news! Photos obtained from government websites (ending in .gov) and from taxpayer-paid sites (.gov, .mil, and other local, state, and federal government sites are generally available for public use. The sites generally request photo credits be used, so you may have something like: U.S. Navy photo by Mass Communication Specialist 3rd Class Brett Walker if you use a photo from http://navy.mil with a news or feature story your students write, for example.

Getting to the question, look at http://house.texas.gov. There’s a photo of the Texas House of Representatives’ speaker of the house. Your student could publish this photo with the his/her story about the speaker of the house without any copyright problems.

Specific to the question, if the photo the state representative-elect sends was taken by the local newspaper’s/cable station/TV station’s photographer (that’s a copyrighted image) then that’s a potential problem. If the photo is a campaign photo the state rep-elect sent to all print and electronic media, and/or has a tab on his/her website with that photo (especially if it’s under a tab called Media or similar), then there shouldn’t be a problem with using it. Now, if there’s a real concern that a particular photo is copyright, then have the student ask the state rep-elect to take a selfie and send it. The question can be phrased something like, “We’d like an original photo that’s not been published before. Would you do us the favor of taking a selfie and sending that to us?”

When my former students wrote stories involving school board members we’d use their posed, professionally taken photos published on the school district’s website without any problems. (We had student-taken photos of the superintendent.) Photos posted on .gov, .mil and .edu sites are intended for public and news media use and save public information officers a lot of time not having to respond to requests for these photos. The sites are paid for by the public’s tax money. I’m not sure about private school .edu sites, but I’d think the same would apply. Again, if in doubt, don’t. Get written permission before using.

If there is any doubt, contact the site, person, or whatever applies. If you need a photo that’s unobtainable, the contact the person or site for permission to obtain and use one. Remember, the person in a photo may not hold the copyright to the photo. So if you need a photo of Brittney Spear, for example, contact her and ask for permission to use an image. If you are referred to the copyright holder you’d need to ask that person/organization. (Generally, celebrities will have (or at least used to have) a photo they’d send to anybody who asked. You need to check that you have permission to publish it in print or online. The celebrity or representative may simply say: here’s a photo you can use.) If in doubt, ask for and get written permission before using.

Keep in mind a music album may have many copyright holders: the jacket design, individual images within the jacket design, lyrics of each song, the actual music (the melody or arrangement) of each song, text and images within the informational insert included with the album immediately come to mind. However, see NOTE below.

NOTE: An album cover used with a review of the album is considered Fair Use and is protected. A movie poster used with a review of the movie is considered Fair Use and is protected. Using a Walt Disney cartoon character “just because” to fill a space or because it looks nice is a violation of copyright and you could open yourself to an attorney’s “cease-and-desist” order or even a bill for a royalty payment.

FYI: Radio stations join organizations like ASCAP or BMI that pay royalties to artists whenever their music is played. If you need unencumbered music you can find it licensed under Creative Commons, such as freemusicarchive.org, ccmixter.org, freemusicpublicdomain.com, and others, or in the public domain (where there are many sites). There are also many Creative Commons sites that offer video and audio clips, and photography for use in exchange for credit.

AND! Under no circumstances ever publish an image (or anything else) from the Associated Press, Reuters, Getty Images, and other news syndicates and organizations. They will aggressively defend the use of their images and other content. They’re aggressive when reacting to their images being used by non-subscribers. Now, if you take a photo of somebody looking at an image, you have an original image taken by a student (or yourself) for a relevant news story, who is now the copyright holder. You’re on safe ground.

Mark Webber

Mark Webber, who retired at the end of May 2019 after 40 years as a classroom teacher, was a founding faculty member of Vidal M. Treviño School of Communications and Fine Arts in Laredo, Texas, a school district magnet school program. He founded the print journalism program and taught it for 26 years and added creative writing to his 5th block class for his final three 3 years of teaching. His former students produced The Magnet Tribune print and online newspapers and Revelations literary magazine. He stays active in scholastic journalism as a JEA-certified mentor and critique judge, a Texas UIL journalism events judge, and as a member of the JEA’s Mentor Committee.

Mark Webber has 9 posts and counting. See all posts by Mark Webber

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