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).
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.