This is a story within a story. The outer story is about Reverend Robert Carlson, who killed himself recently amid a sexual abuse investigation. This post isn’t about that story. It’s about the inner story, about a reporter using a copyrighted photo without attribution, and claiming fair use when the photographer realizes it.

Summary: Steve Mistler of the Portland Press Herald plagiarized a photo by Audrey Slade and when she requested they take it down he told her it was fair use. I think he is wrong, his reporting was solid and didn’t require a photo, he should take the photo down, and he should apologize to Slade for plagiarizing her photo.

Steve Mistler of the Portland Press Herald used a photo taken by Audrey Slade, who worked at Husson University while Carlson was there but didn’t take the photo in her capacity as an employee. Mister didn’t request permission to use Slade’s photo, and he didn’t attribute the photo to her. He found the photo on Slade’s Flickr account, labelled as “All Rights Reserved,” and published it with this article about Carlson.

The appropriate course of action was to contact Slade either via contact information on her Flickr profile or via Flickr’s built-in messaging system. If she replied granting permission, run the photo. If she denied permission, or didn’t reply at all, don’t run the photo. Instead, the reporter used the copyrighted photo without permission and later, in an email exchange Slade published on her blog, claimed fair use.

Mistler’s failure to seek out and use Flickr’s messaging system suggests to me that he didn’t want to contact Slade.

I’m not going to write in-depth about fair use, but you can find good basic information at the U.S. Copyright Office, Standford University, and Wikipedia. The Herald's use of Slade's photo is not, in my educated opinion, fair. The newspaper is a for-profit enterprise, the copyrighted work is a photograph for which false attribution can easily be claimed, the newspaper did not transform the work in any way, and they used it in its entirety.

Ms. Slade sent some very polite messages asking them to take them down, and even offered to handle invoicing them for continued usage (by the way, I think that is wonderful, regardless of whether it would hold up in court). Mistler could have replied asking whether attribution would convince her to allow the newspaper’s continued publication of the photo on their website. Slade probably would have said no, but it would have demonstrated that Mistler was aware of his mistake. Instead, he gave Slade two justifications for his perfunctory infringement:

(1) We could not, by deadline, determine who the photo belonged to, and (2) we ultimately decided it was in the public’s interest to publish them. The story was, in essence, about the evidence that Rev. Carlson was still partaking in Husson activities for years after supposedly being told he was no longer welcome.

And the photo proved that claim, Mistler’s reasoning goes, so it had to be in the article. Except Mistler got the former President of the University to admit to the allegations in the article, a far more powerful confirmation than a plagiarized, undated photo.

That was the wrong answer, legally and ethically.

Now Slade has published the email addresses of several Herald employees (all, I think, publicly available anyway), and a commenter has posted some phone numbers (one of which is a cell phone number and likely not meant to be public).

It wasn’t my photo they used without permission as part of a for-profit enterprise, but I can say that if it was, this whole thing would be more about principle than money or the law: be authentic with readers and respectful of sources and copyright holders.

In sum, there was no fair use in this situation, and there was no need for the “unfair” use in the first place because there was real reporting behind the story. Hopefully, Mistler and the Herald will do the right thing and remove that photo, preferably adding an apology to Slade and their readers at the bottom of the article for the previous use of an unlicensed photo.