Photographer John Tannen is being sued by CBS for copyright infringement. His alleged misdeed: Posting a screenshot from the TV show Gunsmoke on social media. It’s an act so common that, if it is ruled an infringement, could land even this website in serious trouble.
However, Tannen isn’t just an ordinary citizen. The lawsuit against him comes on the heels of a lawsuit of his own targeting CBS Interactive. That lawsuit accuses CBS of using several of his photographers on the site 247 Sports without permission.
The lawsuit against Tannen is clearly retalitory, with CBS hoping to use it to minimize their own damages. However, the lawsuit has come to highlight just how ugly the fight between photographers and news agencies has become and how ugly it may still grow to be.
Photographers Vs. News Organizations: A Brief History
To be clear, new organizations have always faced copyright issues and those issues haven’t been limited to just photographers. Writers, musicians and other creatives have long had issues without their work is used in the press.
But that issue has become much more serious for photographers in recent years. As news rooms have shrunk as part of the move to digital, photographers have been on the front lines of layoffs. Sports Illustrated famously laid off all of its photographers, the Chicago Sun-Times did the same (though they hired them back) and other organizations have been cutting back their photography staffs.
This, at a time where the need for images is higher than ever. News agencies have been filling this gap through a variety of means including crowdsourcing images, using more wire/stock images, more images from press releases and turning to freelance photographers.
Unfortunately, whether it’s due to honest mistakes or unethical practices, a number of the images used by news outlets have turned out to be unlicensed and infringing. This has resulted in hundreds of lawsuits filed against mainstream media outlets over the unauthorized use of images.
This effort has been spearheaded by the Liebowitz Law Firm, which has secured hundreds of settlements on behalf of photographers and, in the first quarter of 2017, was the most active law firm for filing copyright infringement lawsuits.
This, in turn, only tracks the cases that make it a court. It says nothing for the countless cases that play out social over social media, in private or go completely undiscovered.
Still, one thing is very clear, the battle between photographers and news agencies is very hot and shows no sign of cooling down.
Why The Battle?
On the surface, this seems like a fairly senseless battle. Major news agencies have the resources to license photographs and the legality seems to be clear, with one photographer, Daniel Morel, having previously won $1.2 million in damages after the AFP and Getty Images took his images off of Twitter without his permission.
But while every case of infringement is unique, the issue often comes down to one of time.
In a rush to get stories online first, news agencies often have serious lapses in their rights clearance.
For example, in the photos at the center of Tannen’s original lawsuit, CBS claimed that they thought the images belonged to the player featured in the photo and had gotten permission from him.
Whether that serious lapse in rights clearance was willful ignorance will be an issue for the courts.
However, the truth is that rights clearances on images, especially for major publications, is a complex issue that often involves a long chain of clearances. Any breakdown in the chain can, sadly, result in unlicensed images being used.
News agencies have repeatedly shown that they are either unable or unwilling to reliably ensure that chain is intact.
And, from their perspective, there’s little motivation to so. The expense and delay in religiously clearing rights is far less costly than the settlements and bad publicity that result from the ones that slip through.
Though results such as Morel’s are certainly eye-popping, they are abnormal. Most photographers settle for much smaller amounts as so to avoid a protracted legal battle with a much larger opponent.
In short, news agencies are in a place where it’s simply easier to ask forgiveness than ensure they have permission.
The question is, will it remain that way?
A Changing Equation
To be completely clear, the vast majority of images on news sites are licensed from one of the myriad of sources we discussed above. However, news agencies have little motivation to worry about the percentage that aren’t because of a simple fact:
- Most photographers never learn that their images were used.
- If they do, most either don’t care or settle for an image credit.
- If they do care, most are unable to sue either due to financial situation or copyright registration status.
- If they do sue, most usually settle for a small amount.
- The ones who do sue and win large amounts are rare.
Change any part of that equation and there’s an increased motivation on news agencies to verify the licensing on their images.
And change that equation is.
New tools make it easier than ever to find misused images on the internet. Copyright registrations are becoming easier to obtain and efforts of law firms like the Liebowitz Law Firm are making lawsuits more common.
This is likely a big part of why CBS is pushing back so hard in the Tannen case. If photographers get more aggressive at litigating their rights, the current system may well be unsustainable.
By filing a highly questionable countersuit against Tannen, they aren’t just hoping to minimize their own damages, but to also dissuade others from following in his footsteps.
What remains to be unseen is whether that approach will work, or whether it will backfire.
One of the great ironies in this story is that CBS, along with many of the other companies involved in these lawsuits, have been very aggressive in fighting piracy of their works.
While they certainly have every right to defend their work, it’s important work created at great expense, it is difficult to encourage others to respect your work when you show so little respect for other creators.
Mistakes are going to happen, unlicensed photos are going are going to be used. Though there are steps CBS and others can and should take to reduce that amount, how one responds to mistakes is just as important as avoiding them.
CBS’ response here takes what is already a boiling war between photographers and news agencies and escalates it. Such an escalation, unfortunately, doesn’t bode well for either side.
Here’s hoping that this is a one-time outlier and not the start of a pattern for CBS and news agencies.