Lawyer: Student likely owns falling bear photo, not newspaper

On Saturday the Associated Press issued a “photo elimination” of Andy Duann’s falling bear pictures, advising its members to “eliminate from your systems and archives” AP’s “Campus bear” photos shot by Andy Duann and credited to the CU Independent, the student publication of the University of Colorado Boulder, where Duann is a student. “A copyright dispute has arisen between the photographer and the publication that made the photos available to the Associated Press,” the notice read. The notice applied to the four photos of Duann’s that AP was distributing, one of which was a horizontal crop of his original bear photo.

Paul Colford, an Associated Press spokesman, says it’s his understanding that the CU Independent made the photos available to the AP co-op. (One of those photos was on page 3 of my hometown paper, The Washington Post, on Saturday morning, credited to Andy Duann/CU Independent via Associated Press.)

On Friday, I reported Duann was upset at his school’s newspaper because his photo had gone viral and was reproduced around the world without any payment to him. Duann maintains he’s not a staff photographer at the paper, the CU Independent. The CU Independent’s adviser, Gil Asakawa, maintains Duann is a staffer and that the paper owns the copyright to the photo (shown below).

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

Duann said he wasn’t assigned to shoot the photo that day: A friend called him to say there was a bear in a tree near his dorm. He grabbed his Canon 50D and rushed down, snapped about 300 photos, and sent a selection of them to Robert Denton, CU Independent’s editor of visual content. Duann had photos in the paper previously; the most recent was after President Obama visited the school last week. Those photos, too, resulted from Duann’s enterprise, he told me on Friday; on learning CU Independent had missed the deadline for requesting photo passes for the event, he said, “The day before I just called White House directly and got two passes.”

When I contacted Denton to determine whether Duann’s account was accurate, he said he’d bring my questions to Asakawa, who has not yet responded.

Duann said he’d started attending meetings of CU Independent photographers about two months ago and never signed any agreements. Does that make him a staffer?

In an email, Student Press Law Center attorney Adam Goldstein wrote, “Duann owns the photograph unless he signed a work-for-hire contract or was in a traditional employment relationship.” The word “traditional” is where this case hinges, Goldstein stated. “Payment alone doesn’t create that relationship; independent contractors get paid, too, and independent contractors own the copyrights they create.” A staff policy that grants copyright “won’t work.” Federal law requires a signed statement. “I’d assume if such a document existed, there’d be a lot less philosophical musing over his status as a staff photographer or not,” he writes.

Duann told me today, “I do consider myself a part of CUI.” In a follow-up phone conversation, Goldstein said even if Duann considers himself a staffer, that doesn’t grant the newspaper ownership of his work. “It either has to be explicitly by contract or it has to be in a traditional employment relationship,” he told me. And student journalists, he’d written earlier, “are almost never in a ‘traditional employment relationship.’” The benefit of a student newspaper-student journalist relationship, he wrote, “is typically supposed to accrue to the students.”

Goldstein doesn’t believe a college newspaper demanding copyright is hewing to that principle: “when you have a nonprofit educational institution providing support to a student newspaper, it would be kind of insincere for that newspaper to assert that it has a traditional employment relationship with its students for copyright purposes, but that it doesn’t have a traditional employment relationship for minimum wage purposes, or social security purposes, or that its payroll shouldn’t be taxed the way a traditional employer’s would.”

But if college newspapers want copyright, Goldstein writes, they need to get work-for-hire contracts from all their contributors. “That said, even if one existed here, it would have to be astonishingly broad to cover this photograph. I’m skeptical something that broad is even something that a student newspaper would want.”

Michael Roberts at Westword reported on the copyright dustup today. Asakawa told Roberts the paper was “operating from a position of establishing the copyright and acting on those copyrights.”

It helps to think of intellectual property as physical property, Goldstein said on the phone. “I’d sort of analogize it to you wake up, and there’s the student newspaper adviser in the backyard selling off pieces of your backyard. Yeah, it’s interesting that he didn’t know that he didn’t have ownership of that,” Goldstein said. “But I don’t think that means I’m not entitled to get my stuff back.”

On Friday, Duann told me he’d consulted with a professor at University of Colorado Boulder who specializes in copyright law. (See correction below.) Duann says because he was considering action against the school, the professor referred Duann to a Denver attorney who told Duann he had a claim on copyright and offered, for a fee, to write a letter demanding the school stop distributing the photo. Duann is still considering doing that. But in terms of making money off the shot, the bear had already fallen out of the tree, so to speak, at that point. The Boulder Daily Camera, after negotiations with both Duann and Asakawa, published the photo on Thursday and it spread after that.

Poynter inadvertently became involved in the debate over who owns copyright to the bear photo on Friday. When I first contacted Duann, it was to ask him about how he got the shot. That’s when he told me he was at University of Colorado Boulder’s law school, waiting to talk someone so he could take action against the school. While I was preparing an article reflecting that news, my editor asked me to request permission from Duann to reproduce the photo (given the circumstances, we thought we’d better check). He asked for $200, which we agreed to pay. When I spoke with Asakawa on Friday he expressed some dismay about the arrangement but said we should go ahead and pay Duann. Duann sent an invoice, but on Saturday he emailed me, asking Poynter not to pay him until the issue of copyright was sorted out.

In a series of phone interviews this morning, Duann said he had decided he no longer wanted to be paid for the photo by anyone, including Poynter. He just wants to own the copyright to it, he said, and told me he has a meeting scheduled today with a school administrator to discuss that demand (Roberts reports that administrator is Christopher Braider; Duann told Roberts he also wants the school to establish rules about copyright.) He also laughed about how this situation had arisen around a photo he doesn’t even like that much:

“I don’t think it’s a good photo,” he said on the phone this morning, “because it’s out of focus.”

Correction: I originally repeated Duann’s assertion that he’d shot only twice for the paper; it was four times, he said in a phone call today. Also he told me on Friday that after seeing a law professor, he and the lawyer were drafting a letter to the school. The CU law professor, he said today, referred him to a Denver lawyer and he has not yet decided whether to engage him to send that letter. And: This post originally referred to the Student Press Law Center by the wrong name.

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  • Chris Lyonz

    Too late. It belongs  to the interwebs nao

  • Falling Bear

    Falling Bear lands on Facebook!  —>

  • Egg Man

    VIEW FROM TAIWAN, dan bloom comments: The photo of a bear falling from a tree in Colorado that appeared on the frontpage of the China Post on Sunday, April 29, was taken by a Taiwanese studentwho has been studying in America for the past seven years. However the front page photo only credited AP with the photo and did not mention his name at all. A native ofHsinchu City, Andy Duann is a studentat the University of Colorado Boulder and is set to graduate with abachelor;s degree in electrical engineering in just ten days, he toldme over the phone on Monday.
    He is in the news in America now because as a member of the university’sstudent newspaper photojournalism staff, he just happened to be at the rightplace at the right time to get that amazing photo.
    “Although there were some other photigraphers there at the scene, my photo wasselected for publication, and it went viral later on, because I was the only oneto snap the bear in midair as it was falling,” Andy told me in atelephone interviewfrom his apartment in Colorado. “Most news reports havenot credited me by name as the photographer, just giving theuniversity’s name in thecredit line, alongwith the Associated Press for putting the photo on the internationalwires. But that wasmy photo. I didn’t get paid for it, and I don’t want to get paid forit. But I do want to get the copyright back in my name.”
    All proper credit for that photo, which went viral all over theworld, should goto Taiwanese national Andy Duann, who is now a U.S. citizen, too, heconfirmed by phone. Duann took the photo and gave it to hiseditors at the school newspaper, who ran it with his name credited inthe paper.
    “Sure, I am excited about all this news, and my parents in Taiwan areproud of me, they knew the news first, and they alsosaw the photo on the front page of the China Post,” Duann expressed.His mother 何淳雪 (Shirley Ho)  teaches physics at a university inTaoyuan County. His father 段家瑞 (Jia-Ruey Duann)  .works for ITRI in Hsinchu.
    “But you know, I am too busy preparing for my finalsnext week so I can graduate to be thinking too much about this bearphoto that went viral. I am just happy I could do whatI did and that the photo touched millions of people around the world.”
    Duann said that photography is one of hishobbies and has been for the past ten years. “My parents both speakEnglish well and have doctorates from universities in America,”Duann said. “Are they proudof me for this photograph? Sure they are. I called them last week totell them the news about the photo being in the school newspaper. Andthen it went viral.”
    About the falling bear photo, Duann said it happened like this: “Ireceived a phone call from afriend alerting me to the bear on campus and thepolice who’d gathered there to try to remove it from a tree. I raced overto the scene with my cameaand prepared to shoot some photos. I feel it was destiny that I gotthe photo that made the news. And luck. And also,I have a good eye for these things. But this is not going to my head.I am not a professional photographer. I’m just a student hobbyist andI have my finals to think about next week.”
    Duann tolod me that he only had to wait about five minutes for the bear to drop,Was it worth the wait? I asked.
    “You bet!” Duann said. After he graduates, Andy plans to find anengineering job in America and work there for a few years, as heis now a U.S. citizen. “But I will always come back to Taiwan to visitmy folks,” he added.
    Now you know…the rest of the bear story.
    And according to news reports, the bear has been returned to the wild mountainsof Colorado, where it is recovering well from its midair brush withfame, according to Colorado police.
    There’s more. In Chinese sayings, there is a saying: ”廣結善緣” — andAndy’s uncle used these words.It means sometthing like “I will treasure the connections that I makewith other people. I will be greatful for the food that I have. I willtreasure all the fate that comes to me and make friends all round.”
    Andy told me on the phone today: “I I agree with my uncle’s words”.

  • Don Whiteside™

    I don’t know where you live, but my bank does not yet take recognition for mortgage payments.

    Nobody’s looking all that classy in this conflict but I’m more inclined to be sympathetic to Duann’s position than Asakawa and the CU Independent’s. With no written agreement between them as far as we know (else this conflict would be a lot more cut and dried) it seems reasonable that Duann expected to get compensated in recognition for his photos _that appeared in the CU Independent_. Clearly he was interested in that exposure since he reached out with the bear photos.

    However it seems equally obvious that Asakawa should have considered whether Duann was okay with that level of arrangement when allowing that photo to be used externally. Obviously he recognized the value to the paper of the exposure, given his asking for the photo credit, but I think in particular he should have pulled up short the moment money was changing hands. 

    The obvious question that should come to mind when someone offers you money for something is “what did _I_ pay for this?” When the answer is “recognition” and you’re getting cold hard cash, there’s a good hint that you should be considering whether you’re in the right in your arrangement.

    Subsequently saying that you’d decided that any money should go to Duann is little help. Selling something that doesn’t belong to me doesn’t become more right just because I pass it on to the proper owner; I don’t have an ethical right to negotiate on that person’s behalf.

    Asakawa screwed up by not having written arrangements with his staffers and compounded it by not picking up the phone to Duann before giving the clear to outside use. The fact that it might have been inconvenient isn’t a defense, nor is being sloppy beforehand. Sudden success is a nice problem to have but our news pages are littered with people who acted in haste with good intentions and poor preparation and execution.

  • Anonymous

    Right. I’m just pointing out that journalism students at CU-Boulder (UCB is University of California, Berkeley) are required to take media law (which, incidentally, since I am in that class I know we covered digital copyright explicitly), but Duann wouldn’t have, as an engineering major.

  • Don Whiteside™

    I’m not talking about what Duann needs to learn. I’m talking about what UCB clearly needs to learn. And if they don’t know better you can be sure they’re not sending their students out into the world with superior knowledge.

    That’s not necessarily a knock on them in particular; I think most programs are deficient in this area. And if Asakawa can have more than a decade of experience in the online media world and still be this unprepared for an IP dispute then clearly this is an area where everyone needs to improve.

  • Anonymous

    “He rushed down, snapped about 300 photos, and sent a selection of them to Robert Denton, CU Independent’s editor of visual content. It was the second time Duann had photos in the paper; the first was after President Obama visited the school last week. ” – sounds like he’s on staff.

    Also, it’s pretty insulting that he got so much recognition from those photos being reproduced in other news sources, thanks to the CUIndependent but still believes he “worked his ass off and got nothing”? Tons of unpaid photographers (with more skills and experience) have worked this asses off for less recognition. this kid has only been on two photo assignments! not to mention every member of the student press who covered obamas visit had to get their press passes on their own, its an independent student newspaper…

    its just sad the CUIndependent’s big news day is being tarnished by greed.
    support student news! 

  • Anonymous

    Duann is an engineering major.

  • Anonymous

    too late, ap, too late.

  • Anonymous

    Boulder Daily Camera or Denver Post ought to be hiring this guy.

  • Don Whiteside™

    Good for the AP. If UCB has any sense they’ll reach a settlement with Duann and view it as an investment in course development. It amazes me that students can get a communications degree at most schools without a required media law course. Between these sorts of disputes, questions about aggregation, and all the potential defamation issues that can arise in modern reporting it’s critical that graduates be aware of the landscape.