He Said No, Fox News Used His Images Anyway

Over the weekend, Ellicott City, Maryland was pummeled by massive rainfall, which triggered devastating flash floods through the historic district of town. Resident Max Robinson was trapped in an apartment building near Main St and Maryland Ave when he started documenting what transpired on Twitter.

Note: This article contains strong language.

As the social media coordinator for Howard County Recreation and Parks and contributing journalist to the Baltimore Beat, Robinson was no stranger to social media norms and intellectual property rights. So when he received a request for free publication of his work on “Fox News Network, LLC & Fox News Edge affiliates use on all platforms” in exchange for credit, he responded quickly and tersely.

Front door to Phoenix Emporium is blocked by a tree and water. Front window is breaking. pic.twitter.com/96LY1F20ix

— Max Robinson (@DieRobinsonDie) May 27, 2018

Hello, may we please have permission to use your pictures and video of the flooding along Main St. on Fox News Network, LLC & Fox News Edge affiliates use on all platforms w/ credit? Do we need anyone else's permission? Thank you.

— FNC Assignment Desk (@foxnewsdesk) May 27, 2018

No, fuck off https://t.co/45gbtPxHQC

— Max Robinson (@DieRobinsonDie) May 27, 2018

But the request seems to have been perfunctory because Fox News used his content anyway [Update: See Fox News’ comment below].

Dramatic video shows "catastrophic" flash floods in Ellicott City amid heavy rains on Sunday. A state of emergency has been declared in Maryland. https://t.co/qJRrMzTKH1 pic.twitter.com/1qg8ci8DwX

— Fox News (@FoxNews) May 28, 2018

The National Press Photographer Association’s General Counsel and photographer advocate Mickey Osterreicher didn’t take kindly to the blatant disregard, accurately pointing out that under U.S. Copyright Law 17 U.S. Code § 504, willful infringements can lead to statutory damages up to $150,000 per image.

Do you work for “credit” or does @FoxNews pay you? Which part of “no” did you not understand? Under #copyright law use after being told not to is eveidence of willful infringement with damages up to $150,000. Stop asking if people “are OK” and then disrespecting their rights.

— Mickey Osterreicher (@nppalawyer) May 28, 2018

Photographers started tweeting at Max Robinson to protect his IP and lawyer up. Even “copyright troll” Richard P. Liebowitz reached out.

Thanks for thinking of us, @anonymoustal! @DieRobinsonDie, please feel free to contact us for a complimentary case evaluation.

— Liebowitz Law Firm, PLLC (@liebowitzlaw) May 28, 2018

Ever since Daniel Morel won a $1,200,000 judgment against AFP, media organizations have been wary of posting content found through social media. The practice of assigning a junior producer to acquire free rights through a tweet or DM is sadly still prevalent – particularly when it comes to breaking news – and is certainly not confined to Fox News. But the blatant use of Robinson’s photo/video after he specifically denied them permission has become pretty rare given the huge legal liability that it presents.

Statutory damages are only applied to content that has been registered with the U.S. Copyright Office. But content creators have up to 3 months to register their works after initial publication for infringements that occur prior to registration. Attorney Leslie Burns commented, “If one registers a work after the 3-month window, the one can still get statutory damages but ONLY for infringements that start (not just that are discovered but that actually start) after the registration.”

In other words, register your copyright.

Update: Fox News tells PetaPixel that it used “APTN as the source for the images on all our coverage over the weekend – including the photo in question. We licensed the footage through AP’s licensing service, APTN, who made this material available to all their subscribers.”

About the author: Allen Murabayashi is the Chairman and co-founder of PhotoShelter, which regularly publishes resources for photographers. The opinions expressed in this article are solely those of the author. Allen is a graduate of Yale University, and flosses daily. This article was also published here.

Image credits: Photo by Max Robinson (@DieRobinsonDie)