Conffederate
Confederate

February 29, 2008

AP Lawyers Down Snapped Shot

Snapped Shot a photojournalism criticism site run by Brian Ledbetter, has gone dark due to legal threats from the Associated Press for copyright infringement for reproducing their images in order to critique them:

It's Been Fun We have been informed that the Associated Press takes issue with our use of their images on this website, and until I'm able to resolve this matter with them amicably, I'm going to have to take the site offline.

Please feel free to e-mail me if you know more about this kinda thing. I'm posting a copy of the AP's letter below, for full disclosure.

Background
Snapped Shot is a site that deals with the criticism of photojournalism. The industry is inaccurate in its reporting, it falls for terrorist propaganda too easily, and in general, the photos that you see presented as "news" on a daily basis are nothing more than fluff. This site has, from the beginning, intended to correct that by presenting specific instances of bias or inaccuracy along with commentary as to why said photographs are inaccurate. I have never drawn a profit from this website, and have never received compensation for any of the "copyrighted" works that are owned by the AP. Furthermore, I have always been careful to give full credit to the wire photographers who have taken the pictures, and have even interacted cordially with a handful of them.

What The?
So why is the AP seeking action against me? I am not making any money off of their work. I am not a mainstream "news" site ala Yahoo, Google, or Breitbart. So what's the deal? Is the Associated Press uncomfortable with the content of this website? Have I struck a nerve too close to home? No idea, but if you're a lawyer that deals in intellectual property, I'm ready to become your new best friend...

Ledbetter includes a scanned copy of the letter from the Associated Press at the link above.

I've long been under the impression—perhaps wrongly—that reproducing photographs for the purpose of criticism was within "fair use" guidelines.

I am familiar with Snapped Shot and have worked with Mr. Ledbetter on occasion and his site, the best I can recall, did seem to satisfy the general guidelines of fair use as many of us understand them.

If the Associated Press has determined that it is in their best interests to sue to keep from being criticized by bloggers, this will be a very unsettling development. I certainly hope that is not the case.

I've just sent an email to Paul Colford of the Associated Press asking for specifics of why Ledbetter's site came to their attention, and hopefully he can shed some light on their motivations as this story develops.

Update:

Colford responds:

I have nothing to add beyond the letter from AP, except to underscore that this is a copyright matter.
Posted by Confederate Yankee at February 29, 2008 05:16 PM
Comments

I think the "fair use" rule would apply here. It's probable, though, that they want to stifle criticism however they can.

Posted by: Steve Stewart at February 29, 2008 06:05 PM

The Electronic Freedom Frontier at www.eff.org has a lot of info and may offer to help. The paper at
http://www.eff.org/issues/ip-and-free-speech explores some options.

Posted by: Actual at February 29, 2008 06:19 PM

The applicable section of the Copyright Act is 17 USC 107, which states:

17 U.S.C. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specifie by that section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit
educational purposes; [In your case it is for educational and non-profit]

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Seems to me that the use of the photos fall within the fair use doctrine set forth above. Also what little case law I reviewed also supports that conclusion. However I am not an IP attorney.

Mike

Posted by: Mike at February 29, 2008 07:34 PM

This is SOP. Copyright is in flux today, partly because corporations, and AP is a corporation, have friends in Congress who are challenging fair use.

This sort of cease and desist intimidation is most often directed at left-leaning documentray filmk makers, but corporations are blind to politics and only want control. So, all small fry are fair game.

They most likely wouldn't take this to court, but they'd threaten to, and if they did their lawyers would squash this web site like a bug.

This is one of the reasons I usually side with Democrats. They're not perfect, but they're less inclined than Republicans to protect corporate interests over the individual rights.

I know many of you will flame me for this, but it's generally true.

For a good, easy-to-digest book on fair use and public domain law, go to www.law.duke.dot.edu/cspd/comics (I've added the "dot" because Bob's spam filter won't let me post otherwise.)

It's a good summary of the law as it applies to doc makers, and would apply to bloggers, as well.

If your friend has received a cease-and-desist, he should go to www.chillingeffects.org

I hope this helps.

Posted by: David Terrenoire at February 29, 2008 09:29 PM

I am not going to flame you David. In point, I think both sides of the Hill are corrupt and are not there to protect the rights of individuals. Thus as an example I point to the last century of laws passed by Congress. Our civil liberties have been eroded one by one over the last 100 years.

Why is it ok to talk to your friends in the car with you, but not a friend who is still at home via cell phone? Why are we still pressing to make it illegal for cellphone use when stats show 1/2 of all accidents of late are by drivers using hands-free devices.

This all goes to eroding personal individual rights. As in this case. Brian's rights to fair use of PUBLICLY displayed photos\images is being challenged by a giant with lots of money. For the nation's sake, for your own liberty's sake, give Brian your support. Else, the AP may come after your kid's class project of pasted photos next.

Posted by: captainfish at March 1, 2008 03:51 PM

This is not a left or right issue. We all know what is going on here and David T. put a name to it: "cease and desist intimidation."

Most modern warfare (corporate or battlefield) requires "money, lawyers, and guns." Bloggers, especially, have damn little of one and three. And most rational people seek mightily to avoid big, steaming, noxious heaps of number two.

Snapped Shot exposed the hubris & bigotry of a news giant, and "cease and desist intimidation" landed on its doorstep.

The only problem is 'who's next?'

Posted by: locomotivebreath1901 at March 2, 2008 09:10 AM

I wanted to say congrats on the baby girl, but that post isn't allowing comments. I'm late, but still...congrats! You are blessed. I'll have a little girl coming in May! I'm excited about that, and excited for you on your blessing.

Posted by: Jay at March 2, 2008 10:06 AM

Hello - until this AP lawsuit, I wasn't aware there was an individual (Brian Ledbetter) whose hobby was photojournalistic criticism (as in academic art criticism or literature criticism).

Although Brian Ledbetter's photojournalistic criticism website is constrained, his written content minus photos lives on at the "Wayback Machine" Internet Archive here ...

... yo Confederate Yankee!!! I can't put the hyperlink to the Wayback Machine into this comment. Would you be so kind as to edit this comment so there would be a hyperlink to Snapped Shot's Internet Archive of WRITTEN content minus photos

Posted by: Malcolm Stevens at March 2, 2008 12:19 PM

AP has a point when you get to point 4 of fair use:"(4) the effect of the use upon the potential market for or value of the copyrighted work."
There can be no question that the AP photo of smoke over Beirut lost a lot of value once it was revealed to be a fraud; likewise once he showed that other photos had been staged, they were worthless. While common sense tells me that SS is in the right, common sense does not always have much to do with the courts.

Posted by: nyexpat at March 2, 2008 02:06 PM

"This is one of the reasons I usually side with Democrats. They're not perfect, but they're less inclined than Republicans to protect corporate interests over the individual rights."

Dems like to pass a lot of regulations and support unions that make life difficult or impossible for small businesses, which is a big contributing factor to corporate dominance.

"I know many of you will flame me for this, but it's generally true."

Oh, waah. You post, you get flamed, life goes on.

Posted by: ben at March 2, 2008 08:41 PM

Hey, David, you might look at the data.

Communications and electronics companies have given a total of over $12 million to Hillary and Obama. Obama got $6,057,316 and Hillary $6,161,973. The nearest Republican candidate was Rudy, who got $1,607,950.

In the Finance/Insurance/Real Estate sector, Hillary got over $16 million.

In the Health sector, Hillary and Obama again top the list, Hillary getting nearly $4 million, Obama about $3.2 million, and Mitt only $2.1 million.

In the eeeeeeeeeeeevil lawyers and lobbyists category, we have three Democrats topping the list. Hillary got $14,067,757, Obama got $11,345,836, and John Edwards got $8,692,033. By contrast, Rudy only got $4,611,805, less than a third what Hillary got.

This data is publicly available on www.opensecrets.org so you might wanna look it up yourself.

And then explain how, with all those donations, Hillary or Obama will be "less inclined than Republicans to protect corporate interests."

Posted by: C-C-G at March 2, 2008 09:12 PM

AP has a point when you get to point 4 of fair use:"(4) the effect of the use upon the potential market for or value of the copyrighted work."
There can be no question that the AP photo of smoke over Beirut lost a lot of value once it was revealed to be a fraud.

And, in fact, its perceived value was inseparable from its fraudulence. Kind of like a counterfeit $100 bill: as soon as the truth about it is revealed, it becomes worthless. Does that mean that counterfeiters can sue you for the "loss" they incur if you report them for printing phony banknotes?

The law does not recognize any right to profit from fraud. And if the "value" is an illusion based on the belief that the fraud is genuine, then said "value" does not actually exist and cannot be "lost".

Posted by: Pat at March 3, 2008 12:51 AM

One name comes to mind: Adnan Hajj.

Remember him? al-Reuter's photographer of deceit and photoshop in Lebanon?

Can you imagine al-Reuters trying to establish that they were 'losing value' by Johnson and other's analysis of the images from then?

Fair Use for analysis and criticism, if they were going to aim it at anyone, would be LGF... they are starting *small* with the intimidation. So they can build a case if and/or when an Adnan Hajj-equivalent shows up for AP.

Posted by: ajacksonian at March 3, 2008 05:58 PM