Newspaper nabs website’s article, claims most of it is ‘public domain’

Decaturish

The Newnan (Georgia) Times-Herald reproduced an article Dan Whisenhunt wrote for the Atlanta-area news site Decaturish, which he also edits. After Whisenhunt complained, the Times-Herald removed his article.

Whisenhunt also noticed the paper had offered his article, which the Times-Herald ran with his byline, for sale in the archive, and sent an invoice for $1,000. “I do not think your staff would publish content from the New York Times or the Washington Post on your website without a prior content sharing agreement,” Whisenhunt wrote.

Times-Herald General Manager John Winters replied, saying “Most authors, including newspapers, seek to have as extensive circulation of their articles as possible so long as appropriate attribution is provided,” and that since it only got 30 pageviews on the Times-Herald’s site, “any damage to viewership on your site, as a result of our posting the article, would be miniscule.” In addition, he contended:

Also, any factual material in the article you posted is not covered by the copyright laws. All facts, even comments by persons quoted in an article, are in the public domain.

Finally, you did not provide us with any documentation that supports any copyright registration or copyright protection you might have obtained for the article in question. Before we can consider doing anything further in regard to your complaint, please let us have copies of documentation that support any copyright registration or protections you might have obtained for the article in question.

Winters is on the board of the Georgia Press Association. GPA President Eric Denty told Whisenhunt that “Since this appears to be a dispute about which you and The Newnan Times Herald have different views, I do not expect the Georgia Press Association to become involved in it.”

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  • http://www.welovedc.com/ Don Whiteside

    You can still bundle it all up and register the whole mess in one swoop. You’re not screwed no matter what – you always have the DMCA takedown option to make infringement stop. If you want to make it hurt with a financial penalty is where the statutory fine matters.

    If you search for Carolyn Photo Attorney you’ll find a very good blog that has some how-tos. It’s aimed at photographers but most everything about the how to register that she describes will work for text.

  • http://www.welovedc.com/ Don Whiteside

    Sorry, I somehow mis-read that or. But I never feel TOO bad about quoting law…

  • http://cosanostranews.com Ed Scarpo

    I have written over 1,500 stories on my blog; I never once thought about copyrighting anything though I founded and own my dot-com blog 100%. Am I screwed? Do I need to do anything to protect myself?

  • Erik Sherman

    Actually, that’s what I wrote: “If you register before the infringement or within 90 days of the first publication, you can sue for statutory damages and your legal costs.”

  • http://www.welovedc.com/ Don Whiteside

    You’re almost right. You can register after infringement and still get statutory damages, but you’re limited to 30 days there rather than the 90 after publication.

    from U.S. Code › Title 17 › Chapter 4 › § 412:

    In any action under this title, other than an action brought for a violation of the rights of the author under section 106A (a), an action for infringement of the copyright of a work that has been preregistered under section 408 (f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411 (c),

  • Erik Sherman

    The remark about registration might not have been ignorance of copyright so much as an attempt at arm-twisting. Copyright exists the moment a work is fixed in a tangible medium. However, if you threaten legal action, you need to have registered copyright. If you register before the infringement or within 90 days of the first publication, you can sue for statutory damages and your legal costs. If you register after, you’re limited to the actual profit the infringer realized without recouping legal costs. The Times-Herald hoped that Whisenhunt hadn’t registered in a timely fashion because, although he would have owned copyright, it would have been impractical to foot the bill for a federal lawsuit. They could have told him to pound sand. It’s a good reminder that independent journalists should register material in batches every three months.

  • Geof Kirby

    As to your assertion that “(m)ost authors, including newspapers, seek to have as extensive circulation of their articles as possible so long as appropriate attribution is provided.” Mr Winters, you are talking absolute bollocks. Dan Whisenhunt is a freelancer and, just in case your english defeats you at this stage, that means he makes his living from selling rights to his articles. Giving them away or acquiescing to their theft doesn’t pay the rent nor put food on the table. Man up and pay up or risk having you and your magazine branded as infringers of intellectual property rights AKA thieves.

  • Peg Starr

    Yes, there’s a difference, absolutely, but often on tight deadlines and minimal staff, images are culled without discerning between the two.

  • Peg Starr

    Think about Facebook images (as an example) with breaking news stories. Sure, the publication cites it was taken from Facebook, but how many times have you seen those used, often without permission and pay? Check in with your production crew (if you still have one) and find out how often images are grabbed from a google search to fill a need on deadline. It happens, and it’s hard to monitor for the non professional photographer.

  • S.I. Rosenbaum

    Yeah, even Buzzfeed doesn’t do this.

  • Adam Ragusea

    Yeah, I think you may be confusing general web photography with Creative Commons licensed photos on Flickr, etc.

  • http://www.welovedc.com/ Don Whiteside

    This is simply not true. “Major” newspapers will certainly not use a photo without rights to it. I am sure misuse happens, but it’s not the norm and serious papers do not do it.

    Part of why they don’t do it is they know that copyright violations for photographs are subject to statutory damages. That’s a bare minimum of $750 and potentially orders of magnitude more if a court finds infringement to be willful.

    Thankfully the standard is not whether the “industry benefits financially,” which would make it out that a failing business could violate all they want. The standard is a minimum dollar amount, as specified in federal law, plus potential damages depending on registration & circumstance. It is not necessary for intellectual property theft to be profitable for it to be prosecuted.

    http://www.photoattorney.com/qa-when-you-are-eligible-for-statutory-damages-for-infringements/

  • http://howardowens.com Howard Owens

    It’s shocking that somebody in John Winter’s position would be so clueless about copyright law and for the GPA to totally ignore its responsibility to stand up for ethical journalistic behavior is staggeringly disappointing.

  • bigyaz

    Not sure what “major newspapers” you’re referring to, but the ones I’m familiar with do NOT publish images for which they don’t have rights. Could you provide specific examples (again, from “major newspapers”)?

  • http://www.decaturish.com/ Dan Whisenhunt

    Tracie, it was the work of a savvy tipster. :)

  • http://www.welovedc.com/ Don Whiteside

    What embarrassing wagon-circling from the Georgia Press Association. If you won’t cross a member over something as blatant as IP theft then what WOULD they have to do for you to condemn it?

  • Ashli O’Connell

    Wow. Apparently total ignorance of copyright law runs rampant in Georgia media. That’s shameful.

  • Peg Starr

    Well it brings to mind an interesting question: Most major newspapers work this way when it comes to images culled from online. If there is an author and source for the photo, the image is credited in the print and online editions, but no payment (usually) is made for it beyond the credit. I guess we are quantifying that image reproduction isn’t as valued as written articles in a way. I do believe that if an industry benefits financially (in this case readership), they should have to pay an agreed-upon fee for the reproduction. But I believe it will take a court ruling to make this definitive. The Internet is still very much the Wild Wild West when it comes to copyright.

  • Tracie Powell

    Double the shame.

  • http://www.decaturish.com/ Dan Whisenhunt

    I have heard back from GPA. They’ve decided to take a pass. I have updated this story. Thank you for writing about it.

  • Martin Langeveld

    John Winters needs to study up on the New York Times Co. vs. Tasini, the outcome of which forced many newspapers to scrub their sites and archives of freelancer content they posted there without contracts permitting such use. Since Whisenhunt was not even a contractor, the paper here has no leg to stand on, whatsoever. Settling for $1,000 will save them money; Whisenhunt could ask for a lot more.

  • Tracie Powell

    Good grief. There is no formal requirement for a work to be registered in order for copyright to exist. Registration does help when it comes to going to court to assert ownership, but other than that, if Dan Whisenhunt created the work and then “fixed” it on his website, then copyright does in fact exist. Unless the newspaper transformed the work in some way by adding new meaning or expression, then it’s Dan’s work, and The Times-Herald should have gotten permission to republish the work and paid Dan for the privilege if he so required.

    Sounds like The Times-Herald messed up, badly, and should apologize and make it right instead of excusing the inexcusable.

    I would also like for Poynter to add context to this piece so that journalists and others, like John Winters, have a better understanding of how copyright works. Thanks, Tracie P.