Two photographers have accused Sacramento TV station KCRA and dozens of other news organizations of copyright infringement over the re-publication of their images, according to a complaint filed in federal court last week.
The complaint centers around video footage and at least one image of starving polar bears that was captured by photographer Paul Nicklen of Canada and Cristina Mittenmeyer of Mexico in 2017. The pair licensed their images to National Geographic, the New York Times and other news outlets in exchange for payment while subsequently uploading the images to their personal social media accounts.
After licensing the content to those outlets, the pair noticed other news organizations were embedding their social media posts in separate news stories, which they said violated their copyright protections because they never granted those other newsrooms a license to use the material.
“Plaintiffs risked life and limb to capture the rare footage that was viewed by millions worldwide and licensed by numerous entities throughout the world,” the complaint says. “Corporate entities that neither secured a license nor have a valid defense are being sued either individually or as part of a defendant class.”
KCRA (Channel 3) is one of several stations owned by Hearst Television to be named as a defendant in the suit. Other media companies being sued for alleged copyright infringement include Uproxx, iHeartMedia, Gannett Company, Mashable and the local television station companies TEGNA and Sinclair Broadcast Group. BuzzFeed was also named as a defendant due to its pending purchase of the Huffington Post, though BuzzFeed itself is not believed to have published any of the videos or images in question.
The Complaint makes note of Instagram's recent statements that its terms of use doesn't grant a license for third-party users to embed other user's photographs. #copyright
— (((Mark Jaffe))), 5 Bridges Law (@MarkJKings) December 15, 2020
In addition to copyright infringement, one Sinclair station was directly accused of plagiarizing a Facebook post made by one of the photographers, who claimed several sentences from the post appeared to be “copy-and-pasted” directly into a news story that ran on the website of a local TV station in New York. The plaintiffs said they suspect that story was later syndicated to more than 200 other Sinclair-operated local news websites.
Both plaintiffs say they’ve heard from some news organizations that they intend to mount a defense under the “Fair Use” doctrine of the U.S. Copyright Act, which allows for the re-publication of copyrighted for purposes of commentary or criticism. But the photographers say that defense isn’t enough to absolve KCRA and other news organizations of wrongdoing because the stories merely noted the “viral” nature of the photograph and didn’t include original commentary or criticism as intended by the Fair Use doctrine.
“The use of the entire video here is analogous to a writer that criticizes a Hollywood blockbuster and embeds the entire movie into the article, then tries to assert a ‘fair use’ defense to justify the display of the entire movie,” the complaint says.
The issue of embedding material that appears on social media and elsewhere is far from settled in federal court, with some judges ruling in favor of photographers and others in favor of news organizations.
In April, a federal judge in New York ruled against a photographer who sued the entertainment website Mashable after a writer embedded one of her Instagram photos. In the order, the judge noted Instagram’s terms of service allowed for the company to license public content uploaded by its users in the form of embeddable media.
Interestingly, the photographers in the case against KCRA and the other news organizations are using testimony from Instagram’s parent company Facebook in the losing case against Mashable to bolster their claim of copyright infringement.
“Instagram, wholly owned by Facebook, has never once given an API publisher user a license to embed a photo or video from another public user’s Instagram account,” the plaintiff’s said, citing comments made by the judge in the Mashable case.
As of Tuesday evening, news stories featuring the plaintiffs’ video images continue to be available on KCRA’s website and others.
