I have a small group of bloggers really really mad at me for asking them to remove a copyright photo I own from online stories they’ve been writing about how I think twitter can be used. I’ve been ridiculed, sent hate mail, and had attack post written on nearly everything I have or might have done in my career that is controversial as journalist. The story has snowballed into something that doesn’t reflect what I was trying to carry out and been spit out as half-truths; mainly because only one person who wrote about me ever called for an interview or fact check.
You see last week a random twitter follower I had never talked to before asked why my twitter profile says ‘no tweets are publishable’. This person writes an anonymous blog that appears to be about CT legal issues. I answered because I don’t want my tweets to end up in a story without my permission. He set me up for bait and pushed back that he thought he could do it anyway. I was silly and spit out a knee-jerk reaction that I’d sue if he did it. With in a few minutes I realized I was likely getting pulled into fight I didn’t need to be in and put the twitter protection lock back on my tweets that had been there for years since I started the account. The follower who asked me about my twitter disclaimer never published my tweets but his buddy, Mark Bennett an independent criminal lawyer in Houston without experience litigating copyright infringement, thought it would be fun to blow up the convo on a blog he writes to promote his legal ideas at his business website.
A whole bunch of silliness happen after that including attorney Bennett posting I want to sue him for libel (I’d asked him if he had libel insurance because he’d bragged in his post he’d been threaten with suits a lot) and I called around to other Houston criminal lawyers who had experienced other guerilla tactics by Bennett. (I wanted to sue Mark Bennett for copyright not libel) Their feedback was ‘he is still the kid on the playground who got off on picking fights with others for the fun of it’. Clearly he’s having fun with this one even though in his own blog he has previously written “That goes to show you how little I know about intellectual property law”.
Well Mark’s little post caught the attention of a tech blog I’d never heard of, called TechDirt, and they took the idea of suing over copying people’s words/ideas or photos people put on twitter as a complete affront to their way of blogging. I became public enemy number one. They even tried to compare my New Canaan arrest, that happen while working on a story about how local parents allow underage drinking that leads to serious injury and the local cops cover it up, to a debate over copyright law. So much so they’ve basically written I’ve been convicted of things mentioned in a NCPD arrest warrant that I’m not even charged with (I have pleaded not guilty for two years now and finally get to talk about what really happen in court next month). After they convicted me they became judge and chose my punishment – all for challenging how blogs lift other reporters original reporting work, ideas, words, photos for the benefit of page views that generate ad revenue for themselves.
My punishment consistent of these bloggers, including the lawyer Mark Bennett, re-publishing a copyright photo I use for marketing my byline. After I asked them to take it down; they basically gave me the finger, kept it up, and apparently think anything you can see on online belongs to them. Now I’m pretty sure my core readers who come here for investigative news on finance and wall street players really don’t give shit about a fight I’m having with some bloggers who get obsessed with what the latest Apple executive is thinking. But I’m going to take a second to explain why a jurno term that lets us (way to often) get away with publishing your online photos when we report on you. It’s called Fair Use. I rarely use photos in my reporting so I had to consult a seasoned copyright lawyer, from Bennett’s home town, to make sure I kind of knew what I’m complaining about and figure out what I could sue over.
This is the image we are talking about.
I took the image on a Malibu beach. It took a lot time to get that magical moment when the sun was setting and the birds were flying low. I wanted something I could use to represent my emotions, thoughts, and personality for marketing my byline. I uploaded it to my twitter profile and included another photo I had professionally done as a byline line that I also own the rights to. There is a short description identifying me as a journalist and the fact that I went to USC and now live on the east coast. I also wrote a line that is now the subject of over a dozen stories by publications around that world “No Tweets Are Publishable”. It’s a phrase I’ve had up since I created the account.
Now that phrase has become a news event. And journalist can argue they could screen grab that phrase from my profile and publish it in a story they are writing about what I think can or can’t be done with tweets. That’s where fair use comes in. What I’m arguing they can’t do is screen grab the whole copyright image and use it in their story telling. Twitter has gotten smarter – the terms of service claim you own the tweets but you are giving them licensed to show it on their platform. They also recently started an embedded feature where you can take a tweet on an unprotected account and add it to an online story you are writing as long as you use their API service. But from what I understand of that technology and license it doesn’t apply to the images I own in my twitter profile.
The copyright attorney I consulted said this after he looked at the situation:
“Fair use” is an affirmative defense that presumes that unauthorized copying has occurred. Clearly, unauthorized copying of your Twitter page (with its background photo) has occurred.
Here is what I learned from him. Courts look at four elements when considering if fair use applies:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107
Let’s look at number one. These bloggers have used my whole twitter profile photo to write stories that have generated them ad revenue from page views and an increase in readers. They’ve taken the image to report or opinion with a really negative tone creating what some could see as a negative affiliate with the photo. (Remember I’m getting hate mail and hate tweets daily still from what they’ve published with the use of my photo to tell their story)
Number two: In determining whether it is appropriate to invoke fair use, courts ask two questions about the copyrighted work itself: whether the work has been previously published, and whether it is factual or creative. Here, although my photos had been previously published on my Twitter page, this alone does not mean that this inquiry weighs in favor of fair use, only that my photos were not previously “private” (unpublished) where fair use is typically unsuited. Creative works justify stronger copyright protection and are less amenable to fair use. Here, my background Malibu landscape photo is not a “factual” work – but rather represents my artistic representations designed primarily to express my ideas, emotions, and feelings in the context of creatively capturing a landscape photo – timing, composition, angle of the sunset/sunrise, flight of the birds (pelicans), reflection of the water, etc. My photo is creative and as such, analysis by the courts of factor two weighs against an excuse of being able to claim fair use.
Number Three: the alleged infringer used 100% of the photo – the heart of the photo. The background photo on my Twitter page had nothing to do with the comment that they were really citing and reporting on. They could have simply pointed their readers to the feed, or better yet, have “cropped” my Twitter page with its background photo to just show the quoted material in the background: “No Tweets are Publishable”. Instead they chose to capture 100% of the original content. This factor weighs against a finding of fair use.
Number Four: As to the final factor courts ask whether the alleged infringer’s use actually inhibits the your production by negatively impacting my market. Since this question goes to the heart of whether allowing or prohibiting a use furthers the ends of the Copyright Act, market effect is regarded by some courts as being the single most important element of fair use. You see I could seek to license out the use of the Malibu photo to websites, bloggers, etc. that might desire to display such creative, artistic content for a fee. Thus, by bloggers who declared such use of my Twitter/photo backdrop to be “fair use” in this situation they would destroy this potential market. This again appears to weigh against fair use.
This was the legal view point I got before I emailed some of the publications, like seasoned media journalist/blogger Jim Romenesko, asking them to take the photo down and alerting them to the fact they could end up in a copyright infringement suit. Knight’s journalism in Americas nonprofit complied and so did a journalism schooling and non-profit called Poynter Institute. Romenesko surprised me when he wrote back “Really Teri, this won’t help your case”. Romenesko had turned from a reporter on the story to one of the tech bloggers acting as an activist against my idea that not everything you see on the internet is yours to use for free and make money off.
So what happens next – the bloggers who have kept up my copyright photo must want to license it – so I could send them bill and if they don’t pay file a suit/complaint. I still have to figure out if that could be done in CT small claims court or if federal court is needed. I could also file a federal copyright infringement suit and sue for thousands in damages. If I have any readers who are copyright lawyers and want to take the case on contingency I’ll gladly you offer 70 percent of what you can collect. For me this copyright suit would be about principle.
You see I think we need some case law to define when online bloggers or journalist can lift other people’s reporting, ideas, photos; whether it’s on twitter or another chat platform. This isn’t about ‘privacy issues’ as so many have assumed in their reporting on this saga it’s about journalist/bloggers taking/lifting each others work and making money off the expense of the person who created it in the first place. If I had unlimited funds I’d love to start a class action suit against Huffington Post or Business Insider the worst content scraper and re-writers I know.
I make money as a journalist off words and facts that I creatively put together to report and educate readers. This is my work product found here at teribuhl.com, any of the other publications I write for or on twitter. I don’t think it’s ok for bloggers to take my ideas/news analysis and copy them onto their sites with out a link and credit back to my work regardless of if it’s 140 characters or a whole paragraph. This entire argument to me is really about respecting each other reporting work: name who breaks a story first, link where it came from, and ask yourself how you can add something new to a news event instead of blind copying each other’s work. Think about it: Why are some people grabbing tweets for on the record comments instead of calling the person and getting a unique thought via an interview. You get much better quotes when you have a dialog with someone and pull out their reaction or ideas instead of using their controlled or planned tweets. They do it because it’s lazy journalism.
The only thing I really care about at the end of the day is getting the best truth to my readers and then getting paid a little something for my work. What these tech bloggers have done this week is more than report a story – they’ve taken my product, tried to dirty it up just because they didn’t agree with my notion of how anything I do on twitter can or can’t be used, and tried to limit a revenue stream. I don’t think that’s journalism it’s just a dirty fight.
2-15-12: Poytner interviewed a copyright lawyer to weigh in on how fair use applies to this situation. They are the only publication beside me to follow basic reporting standards in this story calling a legal expert for a quote about a story on a legal issue that has a lot of grey area is journalism 101.
Editor’s note: I have notice today Mark Bennett has changed the photo I claim is copyrighted that he originally used in his blog post that started this whole saga. I still want him to take down the copyright image and do not give him permission to use it. And my last name is pronounced Buell not Bull but at least Boing Boing was original in their satire on me and didn’t use a copyrighted photo.