Student photographer says he’s considering legal action against school for falling bear photo

Andy Duann’s famous photo of a bear falling out of a tree blew up his college newspaper’s website Thursday. Reached by telephone on Friday afternoon, Duann started to tell me how he got the great shot.

And then he mentioned he was waiting at the University of Colorado Boulder’s law school building, because he wants to take legal action against the paper.

“They did not pay me even a penny,” he said. Duann, 22, is a native of Taiwan who’s been in the United States for five years. He’s about to graduate with a degree in electrical engineering; photography is his hobby and passion. “We did not sign any contract,” Duann said.

He’s upset that the paper’s advisor, Gil Asakawa, allowed publications around the world to reproduce the photo, asking most outlets only for it to be credited to Duann and the CU Independent. Duann said the Denver Post and the Colorado Daily paid $200 each to the school to use the photo. That turned out to be incorrect: Matt Sebastian, the city editor of the Boulder Daily Camera, said Friday that photo editor Paul Aiken had contacted Duann, offering to buy the photo to run on the Daily Camera’s site. (The Colorado Daily is owned by the same company and operates out of the Daily Camera’s office.)

“Andy agreed, there was some back and forth on the price, and ultimately the Camera agreed to pay $250 to Andy for use of the photo, and he agreed that he would be credited ‘For the Daily Camera,’ as we do with freelancers,” Sebastian wrote in an email. “After we posted the photo on our site, the CU Independent’s adviser, Gil Asakawa, e-mailed me asking that we credit the photo to the CU Independent.” The Daily Camera, Sebastian wrote, pays freelancers but doesn’t pay news organizations: “In the end, the CU Independent’s adviser decided he’d rather have the student publication credited than receive the money, so he gave us permission to use the photo free of charge, and we changed the photo credit online.”

Gil Asakawa and Aiken confirmed Sebastian’s account in emails this weekend. “Since Andy is a staff photographer for the CU Independent,” Asakawa wrote, “the Camera needed to contact the [CU Independent] for permission. We assumed the Camera went directly to one of our staff photographers specifically to avoid giving the CU Independent — a competitor — credit. Think how outraged the Camera would be if we approached one of their staff photographers to buy an image in order to credit the photo as ‘for the CU Independent.’ As of yesterday morning, the CU Independent had decided to pay Andy $250 that the Camera had offered him out of our general budget, even though we weren’t being paid.”

Asakawa says CU Independent owns the copyright to the photo. In a phone interview Friday, he said Duann is, despite his protests to the contrary, a staff photographer. The Denver Post, Asakawa said, had agreed to pay the school but the two sides haven’t negotiated a figure yet. Asakawa said he and CU Independent’s editors had already decided that money they got for the photo would go to Duann.

When Poynter asked Duann about using the photo on Friday, he asked to be paid $200 for it; he has since said he’d rather wait until the copyright issue got sorted out. He maintains that he owns copyright.

“I need to point out that nobody here is making money,” Asakawa said. “All the reporters and photographers are volunteer positions.”

Duann said he wasn’t on staff at CU Independent and he started attending photographers meetings at the paper two months ago. (See correction below.)

Duann’s beef with the Independent goes back to President Obama’s campus visit on Tuesday. (No, Duann didn’t take the picture of Obama posing in a bar with a young woman that also went viral this week. I asked.) The Independent hadn’t gotten photo passes to cover the visit, Duann said, so he called the White House and requested press passes. Here’s one of his photos, which I’d like to stress I am reproducing with his permission:

President Obama at University of Colorado Boulder (Andy Duann/CU Independent)

“I think I worked my ass off for CU Independent and in return I get nothing,” Duann said.

“I have to say that I think everybody here works their ass off,” Asakawa said. “We were very aggressive in making sure that Andy got credit as a photographer.”

OK, about the photo: Duann lives in Williams Village, a section of campus he said is a bus ride away from the rest of the school. He received a phone call from a friend alerting him to the bear and the police who’d gathered to try to remove it from a tree. “I was still sleeping,” Duann said. “I just jumped up and put my jeans on without brushing my teeth.” He ran down with no socks (“I don’t like wearing my running shoes without socks,” he said, explaining that he considered flip-flops but decided that would be “less professional”). He ran down five flights of stairs, not waiting for the elevator. A photographer for the local newspaper was at the scene already. “I didn’t think it would be a big deal because I thought the other photographer from the other media would take the same photos.”

He only had to wait about five minutes for the bear to drop. “I barely missed the whole thing,” he said. After the bear dropped, he said, “he was still awake, he was moaning. The police give him the second shot and he passed out.”

He took about 300 photos, several of which made it onto the site and one of which he just discussed with a professor who specializes in copyright law, who “told me that I definitely own the copyright and we are going to write a letter to inform them not to use the photo any more, and we will take further action to collect the money from them,” Duann writes in an email.

This is the now-famous bear photo. (Andy Duann/CU Independent)

Correction: I misunderstood Duann in our phone interview; he said joining a CU Independent photographers group was “like a photography club.” He did not say he’d joined a photography club. Also I originally paraphrased Asakawa as saying the Daily Camera didn’t offer to pay for the photo; it offered to pay Duann but wouldn’t pay the paper, because it’s a news organization. His original quote was: “The Daily Camera expressly said they would not pay us.”

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  • Victor Jeremiah

    Hey Poynter, there’s a world full of exploitative for-profit news organizations out there, who will beat the hell out of you for criticizing them. Grow some nuts and take one on.

  • Victor Jeremiah

     Go Ben. It’s appropriate to have high expectations of Poynter. They’re not god. They just act like it.

  • Victor Jeremiah

    What’s blurry about not getting paid? The absence of a paycheck month after month is pretty easy to understand.

  • Victor Jeremiah

     Pay me first Christian. My posts here have value. Oh wait, was I posting for free?

  • Victor Jeremiah

    This kind of no-risk issue is perfect for Poynter and other gutless journalism industry organizations that pretend to champion good journalists and good journalism. God forbid they should write about any of the decent journalists being savaged for taking ethical stands in this business, the huge imbalance between the 50,000+ new grads churned out every year with communications and journalism degrees for a field with about 1,800 newsroom openings, or any of the other worker exploitation that routinely occurs to support profit growth and keep older, long past their prime journalists employed at colleges and think-tanks like Poynter. Those sins are invisible, unseen and undocumented because Poynter and its peers just aren’t up to the challenge. Here no evil, see no evil, and bank the paychecks, while the rest of us are getting killed.

  • Victor Jeremiah

    I’m with you Sheila. Poynter loves to grandstand and they helped create this problem, albeit unintentionally. They should have just invited Duann to St. Pete for a seminar.

  • Victor Jeremiah

    Hey Brady, you used the phrase” whose” incorrectly here. It’s supposed to indicate possession. You’re looking for “who is.” Art directors need to be able to write passably too my friend, especially after they announce themselves.

    I agree with you on Duann. His attempt at a very public bait and switch was neither wise nor ethical.

  • Victor Jeremiah

     You’re out of your mind. I’ve been in journalism since I was 16. I was a staff photographer at three students newspapers, managing editor of one and editor in chief of another. None of us were ever paid. The term “staff” does not connote pay at college newspapers. A very small percentage of college news media staffers are paid. The vast majority are not.

    Not only that but they make no bones about it. The absence of a paycheck for months and even years on end is kind of hard to miss when you’re struggling to pay your bills.If you don’t like it, you don’t volunteer. Problem solved.

    This kid volunteered. No one did a bait and switch on him. In fact, the only one trying to engage in a bait and switch here is Duanne. I question his personal ethics. And those of you want to reward such nonsense need to go get a job at Fox. Don’t even pretend you’re in the reality-based community.

  • Christopher Watson

    This is all going to come down to the blurry line between being a staff photog and not being a staff photog — how that blurry line is legally defined, and how that definition is interpreted by the various factions. I say “blurry”, because that is how everyone is going to play it. All involved here know that the more doubt and uncertainty you can throw into this question, the more the ultimate outcome will favor the organization over the individual. But it’s actually very cut and dried. Duann states that he is not a staff photog for the CU Independent by any definition, and was only attending “photographers meetings at the paper.” It’s simple, either Duann has a piece of paper that states he is a CU Independent Staff Photographer, or he doesn’t. If he doesn’t, he isn’t. You don’t get put on staff at a college newspaper without something in writing that states that you now take photographs for the newspaper. Hell, if you ARE on staff, then you’re in the masthead. If he’s not in the masthead, he’s not staff. If he’s not staff, then: 1) he’s an idiot for handing the image over to ANYONE without first protecting himself and his rights adequately, and 2) owns the copyright on this image, lock stock and barrel, and can suck out of news organization exactly as much as the market will bear (pun intended).

  • Anonymous

    How many bear skeletons has anyone seen in a tree?

  • Poynter

    Sheila, we have discussed the $200 payment with Duann and Asakawa, who both say Duann can be paid for rights to use the photo. If either contests this decision, we will work with them to resolve it. –Julie Moos, Director of Poynter Online

  • Deuce Bradshaw

    Sounds to me like the guy owns the photo and the Independent has a license to use it. However, further reproduction and selling/giving rights to other organizations is and should not be within their power.

  • The DaringLibrarian

    Oh Puhlease, Mr. Duann – brand your photos with your name, website, Twitter handle, whatever & enjoy the Viral Love! This is a brilliant bullet point to your resume! 

    But acting like a little whiny litigious beyatch isn’t cool at all.

    Creative Commons: It’s Not Just a License, It’s a Lifestyle!  (CC BY-NC-SA 3.0) Cheers!

  • Anonymous

    Andrew, the news that Mr Duann, 22, is a native of Taiwan who’s been in the United States for five years has hit the Taiwanese media now, with the five national dailies that publish in Chinese scrambling to get the focus on the story: Taiwanese student in USA shoots viral photo” is the news theme and TV netwroks here are now preparing short segments on it too. Not many bears in Taiwan, but a few in the high mountains, called Formosan Bears. So Mr Duann knows his bears. I hope he gets paid. He deserves it. And you can be sure the Taiwanese tabloid media, Apple Daily in particular, are rooting for him to come out of hibernation and dish the back story! 

  • Sheila V

    Did Poynter miss the point when they paid Andy for this photo? He doesn’t own the photo, therefore he canNOT make any money off of it. That $200 belongs to the CU Independent. All of the other reporters and photographers work without any financial compensation. The fact that he is getting paid at all – when other photographers have been slogging all semester for free – is a huge nod to Gil and the CUI’s patience for Andy. 

    I also have a problem with Andy saying “he worked [his] ass off” because he got his own press credentials for the Obama event. Since when is it the editor’s job to acquire press passes to an event? I have been a professional reporter for two years and I have never asked my editor to go out and get me access for coverage. That responsibility has always been with the reporter or the photographer. 

    The CUI is a student publication. It’s an opportunity for students to experience working in a newsroom before they jump into the world of journalism and all students join the staff knowing they will not be getting paid. Andy has been tainting this experience for the rest of the staff and this shameful, biased, utterly incompetent article from Poynter is just encouraging it. Every single member of that staff has been working hard all semester – probably all year – for a paper they believe in. To have a photo of theirs go viral is an incredible opportunity, for Andy and the rest of the CUI, but this nonsense is ruining it. 
    It clearly says of the CU Independent’s website that “all materials contained in the online or any print editions of the CU Independent (including, but not limited to, text, photographs, illustrations, video and audio) are protected by U.S. copyright and other laws and may not be copied, modified, distributed, transmitted, displayed or published (either in hard copy or online) without the prior permission of the Editor-in-Chief of the CU Independent.” 

    Did Poynter think to check there before thinking Andy had a case? 

  • Anonymous

    Well, there is a lot to this article and some amazing bitterness in play. I would like to point some of them out.

    1. many of the complaints directed to Andy were actually made by another person. Are those individuals really lacking that much in reading this and are just bitter?

    2.  “I can say that we obviously consider that we own the copyright to the photo,” Asakawa said when he phoned me on Friday.” If asakawa feels that CU would own copyright to the photo there must be a contractual agreement in writing or they clearly DON’T own copyright to the image. Submission of an image to a Newspaper does not constitute handing over copyright unless a contract is in place.

    3. “Duann, he says, is a staff photographer” If Asakawa is stating that Duann is a staff photographer that would imply payment for service. The term staff has meaning and once again there should be a job description, a contract in place, and terms spelled out for all staff.
    - If Duann is a volunteer the photo would remain his including all rights. The handing over of the image would be considered either for negotiation or publication within the school systems newspaper. Other distribution of the image would be up to Duann and agreements would need to be made. If the school paper distributed the image without an agreement with Duann the School has made a serious laps in use and failed to comply with current US copyright law!

    4. The fact that the image was luck may be true? At the same time it would seem that Duann increased his luck by having friends that care enough to tell him about news events. “I have many friends that have done this for me!” Duann ran down to the event and took a lot of photos and increased his chances. In reality most of life is luck, the family you were born into, the country you live in, the resources you have in life all have elements of luck. Just because luck was involved doesn’t mean Duann doesn’t deserve credit and payment for his work. Other photographers were at the event and Duann’s were the ones selected for publication.

  • Anonymous

     Then you must have failed Journalism 101. This story goes way beyond “filing a suit” and discusses important issues dealing with issues media and photographers face every day.

  • John McClelland

    I’d like to see some follow-up on how things went for getting the photo onto wires that made it possible for it to appear in the home-delivery print (yes, folks, old-fashioned paper) New York Times today (Saturday 4/28), with a credit to Andy Duann via Associated Press. I still mentor a former student who now advises a campus paper with limited resources and rare opportunities for something to go viral.

  • Victor Jeremiah

    This is pure buyer’s remorse and a kid who is intoxicated with playing the victim. If he wanted to be paid he should never have given the pic to a free paper for free. Friggin duh. End of story.

    It doesn’t sound like the terms of Duann’s business relationship with the paper were hazy in the least. Did someone steal the pic off his camera or did he willingly give it to a paper that doesn’t pay for pics in the hope they would publish his work and give him some exposure? Come on.

    The paper ought to turn around and charge Duann for the effort they made to train and work with a novice. Plus the obvious pain in the butt. Oh wait, everything they do for him is supposed to be free, right. Cause that’s the nature of the student journalist and student newspaper relationship. Again, come on.

    Look, it wasn’t that great a friggin pic. It was dumb luck that he was in the right place at the right time and any shooter in the same spot would have gotten the same pic, although a good 90% would have remembered to actually focus.

    As for Duann’s ankles, I’m pretty sure he’s not at risk for post-traumatic stress disorder from the horror of working without socks.

    Bottom line, the kid lucked into a pic he could have parlayed into a career in a thankless field. Instead, he tried to play games and make out like a sea lawyer. If this sours himself on the field, he probably did himself a favor.

  • Woody Marshall

    “I think I worked my ass off for CU Independent and in return I get nothing,”

    Welcome to the newspaper industry Andy.

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  • Tfcreate Tfcreations

     Play your cards right kid and you can get free tuition out of this.
    As to Poynter, we have photo journalists being beaten half to death by cops, and despot regimes every hour of every day and this is what you have to report?
    No wonder journalism is dying in America.

  • Amanda Castleman

    All this is a terrible shame. I got

  • DrewAPicture

    “I think I worked my ass off for CU Independent and in return I get nothing,” Duann said.

    You didn’t “get nothing”, you got credit. Welcome to working for a college newspaper, dude!

    “We were very aggressive in making sure that Andy got credit as a photographer.” — Gil Asakawa

    Sounds like this guy Andy Duann both 1) Didn’t understand the implications of shooting for credit and 2) Didn’t understand that unless there’s some kind of written release, there’s an inherent agreement that you’re also handing over copyright and redistribution rights to the publication.

    I don’t see any mention of the Independent having any kind of written release or contract in place and that makes things a bit murky. That’s a base they should have had covered — I know the college newspaper I worked for had one. And Gil Asakawa had to have had a reason to consider Duann as a staff photographer, even if only because at some time he was granted a press pass, was published regularly or something else.

    Photographers absolutely deserve to get some kind of compensation for the work they do, it sounds like this college photog got the kind you can’t pay bills with … credit.

  • Jason Kucherawy

    Did he jump out of bed to take a photo for himself to sell and profit from or for the school paper, where he was volunteering? Did he stipulate that in his contract with the school paper that he was to receive a cut of any royalties the paper received for selling his photos? If nothing was signed and agreed upon and he took the photo for the school paper, he relinquishes ownership of the right to publish but still should be credited.

  • ben knight

    Journalism 101, we do not make a story out of somebody saying they’re “considering” filing a lawsuit.  The Pointless Institute evidently unaware of such.

  • Brady J. Frey

    I’d agree there is some gray area issues regarding permissions and payment. However, the photographer should be handling both his public statements and this issue more professionally. Phrases such as “I think I worked my ass off for CU Independent and in return I get nothing”, if true, sound unprofessional at best, immature at worst. By “nothing” Duann means “money”, since it seems as if he’s received marketing press and credit for the photograph publicly. 

    As someone whose an Art Director, and had their work abused as well as utilized, I hope this serves as a lesson to younger artists. You should fight for your work, but not at the expense of sounding like a spoiled child, and not at the expense of burning career bridges. He would have done well to thank them for the opportunity to work for them, appreciate the worldwide recognition, and professionally address payment as an important issue… but one with more class. 

    With that in mind, congratulations on the excellent portfolio piece. 

  • West Seattle Blog

    Certainly a reminder that there are no universally held “best practices.” Any photo on our website that is not taken by either of us co-publishers (myself and my husband), we do NOT allow redistribution without express permission from the person who took it. That covers everything from a breaking-news cameraphone photo sent to us by a reader, to a news-event photo for which we paid a freelancer as part of assigned coverage, and it’s regardless of who’s asking – another news agency, a government agency … we always say “we have to check with the person who took it, we don’t have redistribution rights.” We think that’s only fair. And if money was being offered, that should have been negotiated directly with the photographer IMO. Will be interested to see what you hear back from the adviser. – Tracy @ WSB

  • Christian Rooney