March 13, 2008
By Daryl Lang
When a prostitute hired by former New York Gov. Eliot Spitzer was identified Wednesday, news outlets eagerly published photos grabbed from her MySpace profile.
Can they get away with that?
Three attorneys who specialize in copyright law say media organizations are sailing in dangerous waters if they publish a personal snapshot without permission.
"Whoever took that picture owns that picture," says New York attorney Nancy Wolff. "It's either an infringement or they [the news outlets] have to make a fair use argument."
Wolff says the news organizations probably decided the risk of a lawsuit was low. They also probably considered competitive pressure as other sources published the same photos. "It's a fast business decision," Wolff says.
The fair use argument would be a thin one, attorneys say. Fair use cases consider factors such as whether the image has been transformed and whether publishing the image displaces the market for the image, according to New York attorney Joel Hecker.
In this case, Hecker says, the image was not transformed and it diminishes the market for the image rights.
"If these are the only images available, they might go for thousands and thousands of dollars on licensing," Hecker says. "I think the probability would be that this would not fall under fair use."
Hecker says he would advise a photographer in this situation to contact news agencies and negotiate a fee, and if that fails, to sue.
Another New York attorney, Edward Greenberg, who has handled several recent cases involving media outlets that ran unlicensed images, says one consideration is whether the photographer has registered the images with the copyright office*, or does so within 90 days of publication.
"Some infringers will intentionally infringe and wait for a letter from a photographer, and there's a 95 percent chance they'll never get one," Greenberg adds.
The New York Times appears to be the only news outlet to speak to the woman previously known only as "Kristen." The newspaper identified her as Ashley Youmans and said she goes by the name Ashley Alexandra Dupré on her MySpace page.
The Times published three images of Youmans on its Web site Wednesday, crediting them to MySpace.com. Two of the images also appeared in the print newspaper Thursday. Times assistant managing editor for photography Michele McNally declined to comment on whether the paper obtained permission before publishing the photographs.
Other outlets, including TV networks and the Associated Press and Reuters wire services, have also run some of the photos, crediting MySpace.
The AP noted that the images were "obtained from a MySpace webpage" and specified that they were to be used, "only to illustrate news reporting or commentary on the facts or events surrounding the Eliot Spitzer prostitution scandal." Reuters identified the images similarly, and flagged them as available only for editorial use.
Associated Press director of photography Santiago Lyon says AP consulted with its legal department before deciding to use the photos.
"Given the news value of the photographs, we decided that these were images that the public needed to see," Lyon says.
MySpace's Terms & Conditions page states that "MySpace does not claim any ownership rights" over the photos users post on the site. It says MySpace has the right to display user content within MySpace, but "This limited license does not grant MySpace the right to sell or otherwise distribute your Content outside of the MySpace Services."
The photos remained on Youmans's MySpace profile Thursday morning, but had been taken down by Thursday afternoon.
*Copyright does not require registration but creators do have an opportunity to register their copyright if they so choose. See copyright office basics: