The photograph of a smiling JonBenet Ramsey in a pink sweater has become the iconic image for one of the most publicized murder cases in history. Now that photograph, along with other still and video images of the slain six year-old beauty queen, is at the center of a critical journalistic debate over the use of copyrighted work.

Thousands of news organizations around the world have used the images for nearly a decade, and the director of a California-based photo agency, Zuma Press Inc. (see Q&A below), insists that much of that usage violates the copyrights held by photographers represented by Zuma. 

Assessment of copyright issues by attorney Mickey H. Osterreicher, who advises NPPA on copyright issues

Other articles of interest to photojournalists by Osterreicher:

The photos began re-appearing following the Aug. 16 arrest in Bangkok of John Mark Karr, who told authorities he was involved in her death. The front page of the Aug. 17 edition of Poynter’s St. Petersburg Times, for example, carried a tightly-cropped version of the photograph with a credit line of McClatchy Newspapers. The Times used a slightly larger version of the same photo on Page One Aug. 18, this time without a credit line. Other news organizations used that and other photos of JonBenet in various configurations, some with credit lines and some without.

The debate over the photos’ usage is important because it illustrates the struggles that freelance photographers face in trying to enforce copyright protection for their photos -- especially in the midst of the media frenzies attached to big, developing stories.

Many journalists working at newspapers and TV news operations seem to believe they can use such photographs, even years later, under “fair use” provisions of the copyright law. Some have justified using the images by relying on the argument that the photographs themselves had become news. Others say they believe some of the JonBenet photographs were released by police agencies and had become available for free use as a result. None of those arguments appears to stand up very well under legal scrutiny.

In an effort to shed light on the controversy, Poynter Online conducted an e-mail Q&A with Scott Mc Kiernan, founder and director of Zuma Press. We also invited comment from attorney Mickey H. Osterreicher, who advises the National Press Photographers Association on such issues. You’ll find the Q&A with McKiernan below, and comments from Osterreicher attached here.

In a follow up telephone interview, Mc Kiernan said the photographer who took the famous pink sweater picture has chosen to remain anonymous. He described him as a businessman who took the photo at a Motophoto studio that he operated in Boulder, Co., where the Ramseys lived.

Mc Kiernan said Zuma has not taken legal action against any of the newspapers or TV stations that ran that image and other photos without payment or permission. He said the agency is trying to negotiate licensing fees with news organizations.

Many newsrooms are recognizing Zuma’s claims. Zuma and NBC News confirmed to Poynter Online that the network has paid license fees for use of the images. Some newspapers have acted quickly as well. Zuma listed the Kansas City Star, the New York Daily News and the Denver Post among newspapers that have licensed the photos from Zuma.

When the JonBenet case made its most recent return to the headlines, some news organizations relied on their own files and some went to the archives of news agencies.  The Associated Press, Reuters and AFP all issued mandatory “kill orders,” but it's not clear how many editors saw those notices before using the photos. Click the links below for readable images of the various kill orders:

AP AdvisoryAP Advisory
AFP AdvisoryAFP Advisory
Reuters AdvisoryReuters Advisory

The Associated Press told Poynter Online that it withdrew the JonBenet image it had been offering to its clients after Zuma provided the AP with documentation of its licensing relationship with the copyright holder.

Asked about his paper’s use of the image, Boyzell Hosey, director of photography at the St. Petersburg Times, replied by e-mail: “We haven't had much discussion since the controversy broke. However at the moment we are honoring the copyright.”
Janet Reeves, director of photography at the Rocky Mountain News, said her paper originally licensed JonBenet images from the Sygma agency, which was subsequently acquired by Corbis. In an e-mail, she also said:

If it’s the JonBenet in the pink sweater photo… That photo was a handout from the Boulder Police Dept. via the family right after the murder of JonBenet. In fact, in our files we still have the original hand out pix and a copy negative. Like many organizations it has been in our files and archives all these years.

I was not aware Zuma had retained the rights to market the photo until the first day the story broke about a suspect. Our Web page had put the photo up right away, also not knowing. It came down later after Zuma put out their advisory. I have not heard from Zuma about any billing.

We did not use the pink sweater photo or any of the ones that Zuma has in our coverage since then. We had other sources we used. If we do want to use the photo I will of course go through the proper channels with Zuma for usage.

I have not looked into what right we still might have to use a photo so clearly out in the public domain, given to us, for so many years.

Santiago Lyon, director of photography for the Associated Press, said the AP regards Zuma as a competitor and, as a result, does not plan to license the images that Zuma represents. But he said the AP is honoring Zuma’s copyright.

The AP also provided this statement from David Tomlin, Associate General Counsel of The Associated Press:

The pink sweater photo has never been in the public domain as some have recently suggested. Under copyright law it won’t be until some years after the photographer dies unless he expressly disclaims his rights and puts the photo into the public domain himself.

The fact that the picture was made available to media at the time of the murder did not give anybody the right to distribute it. What allowed AP and other media to use the image at that time was that the copyright owner did not take any immediate action to forbid it. But that does not mean he could not assert his rights later on.

The fair use arguments for ignoring ZUMA's assertion of rights to control the image are very weak. Fair use can allow an otherwise infringing use of a photo where it is the photo itself -- not what is depicted in the photo -- that is news. This is not the case here. JonBenet Ramsey is the news, and ZUMA appears to control an image of her that many want to use.

ZUMA has asserted its rights to control the image on at least two occasions we know of and possibly more often since the time of the murder. We asked on one of those occasions recently to see a written representation from the copyright owner that ZUMA was his exclusive representative for the photo. ZUMA produced such a document, and we are honoring both the copyright and ZUMA’s agreement with its owner.

Here is an edited version of the e-mail interview Poynter Online conducted with Zuma founder Scott Mc Kiernan:

Are the still photographs of JonBenet Ramsey in the public domain-free for publication?

No and they never have been! There are no images in the public domain of JonBenet from ZUMA photographers or anyone, it does not apply. All the images were made between 1993 and end of 1996.

Who owns the rights to these pictures? How did the rights-holders get these rights?

The creators of these images hold the rights. Per the copyright act and reinforced in the latest version of March 1, 1989. The creator automatically own rights from moment of inception, unless they signed away these rights or was a condition of employment.

None of these pictures fit into either of those caveats.

ZUMA is exclusive representative to all pageant pictures. Every event she competed at, we represent every known event and photographer and video photographer of those events. Our photographers own the copyright and we represent them, exclusively. Due to the way pageants are organized, no one except the official photographer was allowed to shoot any pictures or video of any kind at any of the events JonBenet competed in.  

ZUMA reps all but two of the studio photographers. One photographer is represented by another agency and the other as far as I know did not wish to have his images run in magazines out of respect for the victim. We work hard to protect his rights too, despite the lack of ability to market his images.

ZUMA also reps two photographers who made images of JonBenet in parades.

Other than that, the only other images I know of are snap shots by John (her father), which he included in his book.

All told we rep over 20 people on this story.

All photographers since these images were made in 1993 and after are automatically owners of the copyright, unless they assigned it over. Which none have done.

Weren't some of the photographs released by police?

NO! Never. And even if they had it is a moot point.

What would/could happen if Web sites/newspapers/TV stations continue using the still pictures without paying for them?

I recommend always trying to work it out. Most of the time it is a lack of understanding of the law and not intentional. We always try to work with other media first.

As we have in this case. We -- as their representatives -- are trying to get the wrong-doers, whether intentional or absent minded (like the papers not following through on AP kill orders or not caring) to settle and move on. If they do not then we will react to that after a deadline has passed for them to pay for the usages. We are in the business of covering the world events, we are not interested in lawsuits. But we also must protect our rights, as do the parties who seem to think it is no big deal do with their own content and intellectual rights.

Hopefully if all editors understood and followed up on the laws, we would not have these issues. I find 99% of the industry's hearts and minds are in the right place. Most copyright violations are not intentional, to the best of my knowledge.  Copyright is everyone's law. Big, small, individual and corporate.

Have the wire services that distributed the photographs responded to your requests?

We are working with all of them at present with some good success and some roadblocks.

Does this also apply to the videos of JonBenet--especially the pageant videos?

Yes, all above goes for that content too.

What are the costs
of licensing the photographs? The videos?

Varies on size of publication, circulation and whether usage is for one-time or,
in case of TV, for a period of time or flashes per show.

The usage of the
pink sweater is confidential between us and our clients and would not be
respectful to discuss what any of them paid.

I can say we did not charge the
high premiums agencies in the past have charged for such images. We charged 2x
or 3x space rate per circulation or TV show or network usually space rates.
Standard minimums for basic premium imagery.

Not anywhere near the
exclusive prices agents around the world normally sell such highly sought after
exclusives during the type of media frenzy this story generated, yet

We decided even though we could ask super high figures as controllers of the lion share
of the video footage and all the pageant stills,
we would rather work with our clients and make this imagery
available to more people (and) still make a decent return for our photographers, which
frankly is our primary concern. Protecting them; following through on there expressed interests and
representing them as best we can.

Did the
wires that distributed the photos recall them?

three of the advisories were sent out only hours after the story
broke. Long before all the papers had locked up for the next day. Most papers
lock up 9 p.m. to as late as midnight -- because of sports. These advisories went
out in the afternoon and early evening in the last time zone.

Many editors
told us they do not read advisories. No time, not enough staff.

would these media giants who own these papers and TV networks do if the shoe were
on the other foot? How would they have reacted if we or anyone  broke their
copyright? Especially on an exclusive element.

The general lack of
understanding of public domain and fair usage to the side, please remember (that) most
of this hoopla would never had happen if AP did not repeatly re-release our

The issue is not Zuma or our behavior. It is copyright. Is it
dead? And procedure and process. Rights and Clearance -- what happens to that in this
equation? Since when does being a photographer or a picture agency require police full-time police work? We are here to cover the news, not police it!

All the news is not bad. Many ethical and well-run papers (The Denver Post, The Kansas City Star, the Daily News to name but a few) and TV
networks such as NBC did the right thing and called us when they saw the
advisories or in the case of NBC having licensed as many had in the past, to
re-license. Bravo! They believe in copyright. I applaud them.