This is how a simple, everyday experience of one man and his smart phone turns into big dollars. In short, a person (not a professional photographer), takes a picture of a criminal defendant. That picture is newsworthy. The picture is posted to Instragram. Cox Media uses the picture without first licensing it. The Plaintiff, who has now registered the photograph with the US Copyright Office, sues for infringement and wins the liability phase of the case on summary judgment. The Defendant asserts a fair use defense and loses.
This is the tale of Cruz x. Cox Media Grp., LLC, Docket No. 18-CV-1041 in the US District Court for the Eastern District of New York. A copy of the Court’s Memorandum and Order appears below.
Here are a streamlined version of the facts, as presented by the Court in its opinion granting the Plaintiff’s summary judgment motion:
The Plaintiff is a NYC native who works at a furniture company in downtown Brooklyn. He is not and never has been a professional photographer. One day while on a walk in TriBeCa, he notices a man acting erratically being approached by law enforcement.
The Plaintiff takes a picture on his iPhone of the man being apprehended by the NYPD. As anyone would do, the Plaintiff sends the picture to his friend, who then posts it to his (the friend’s) Instagram account. This scenario plays out thousands of time a day across the country.
CNN and NBC News contact Plaintiff and license the photograph from Plaintiff (i.e. the parties enter into a Licensing Agreement, the Plaintiff is paid a licensing fee and gets attribution as the photographer).
However, according to the Court’s opinion, the Defendant, “a national media company with 13 television stations, 61 radio stations, four newspapers, and 72 websites” did not license the photograph from the Plaintiff. Nevertheless, the Court noted that ”[t]he Photograph appeared, in full, as the second item in a gallery of video and photographic content positioned below both the headline and the date and time that the Article was last updated on the WSB-TV website, as well as on Cox's Twitter and Facebook pages.”
The Plaintiff did register the photograph with the US Copyright Office and was granted a registration certificate.
The moral of the story: To all amateur (and professional) photographers: 1) if a media company approaches you about using your photograph that you have posted to social media - demand a licensing agreement and fee; 2) be sure to register any such photographs with the US Copyright Office so you have legal standing to enforce your rights in federal court.