Unfair use — and abuse
The Portland Press Herald grabs someone else’s photo and won’t apologize
By Al Diamon
Sometime on Aug. 6, the editors at the Portland Press Herald made a big mistake. Then they followed up by making a bunch more.
Here’s what happened: The paper had gotten a tip that a former employee of Husson University in Bangor had a Flickr online photo album that showed the Rev. Robert Carlson attending events at the school for years following his resignation as campus chaplain. Carlson quit in 2006 after being confronted by then-Husson president Bill Beardsley about allegations of sexual impropriety. Carlson committed suicide in 2011 upon learning he was under investigation for sexually abusing minors, and Beardsley subsequently — and reluctantly — informed police that he had told the minister to stay away from Husson.
The photos were proof that ban was never enforced, and word of it apparently was never passed along by Beardsley to other members of the administration, who continued to invite Carlson to various ceremonies.
The Bangor Daily News has owned the Carlson story, digging up several fresh revelations since his death last November. The Press Herald editors must have been excited to have finally gotten a jump on their rival.
Perhaps too excited.
Staff writer Steve Mistler turned out a competent story for the Aug. 7 paper on the photos’ implications for Beardsley, who is serving his final days as the state commissioner of conservation and has faced uncomfortable questions about whether he ignored evidence of child sexual abuse.
But Mistler’s editors also wanted to run at least one of the photos of Carlson at a Husson event on the front page. According to an e-mail from managing editor Steve Greenlee, Mistler attempted to reach the owner of the Flickr account to get approval, but — in spite of knowing who she’d worked for at Husson and what her position had been there — he was unable to locate her. So, the Press Herald published the picture anyway.
And, mostly importantly, without permission.
A couple of days later, the owner of that photo – Audrey Slade, formerly of Old Town, now living in Washington state – found out she’d become an inadvertent part of the Carlson saga. On Aug. 9, Slade posted an account of what happened on her blog.
“No attempt to contact me,” she wrote. “No attempt to credit me. Just taking something I did and with no care or regard, dragged something I did to be kind into a sordid and disgusting story.”
Slade e-mailed the Press Herald and asked that her photo be removed from its Web site. A day passed without response. She sent a second e-mail, restating her demand and asking for $100 a day in compensation for every day the paper continued to use her material. Two more days passed before she received an e-mail from Greenlee. He wrote that the Press Herald decided it was justified in using her photos without permission because “it was in the public’s interest to publish them.”
Slade’s posting began to generate buzz in the journalism community and among her friends. The Press Herald was taken to task on a number of Web sites and in online comments. In response, on Aug. 10, the paper posted an attempt at an explanation on its Web site. That brief piece was taken down about 24 hours later, and cached versions on other sites have also since disappeared.
The unbylined explanation makes one admission of incompetence: “[W]e neglected to click the message button on Flickr, which presumably would have sent an email to the account holder.” It then echoed Greenlee’s e-mail to Slade in an attempt to justify the photo’s use without permission. “The photo was viewable by the public with no privacy settings,” the article reads. “The image was central to a story of great public interest.”
By those standards, virtually anything on the Web could be appropriated by anyone, including the entire Press Herald site. That sort of policy would be in sharp contrast to the newspaper’s long history of taking aggressive action against anyone who reproduced its photos or used more than brief quotes from its stories without authorization. Apparently, those rules only work one way.
In fact, the photo the paper took (and all the others on Slade’s site) was clearly marked “All Rights Reserved,” which is common on Flickr. And while the photo lent credibility to the paper’s story, it could scarcely be considered “central” to it, since the article adequately described its contents.
On Aug. 13, Slade told me in a phone conversation that the Press Herald had finally agreed to remove the photo from its Web site and pay her $400 for its improper use.
“It felt like shut-up money,” she said. “All I wanted was for them to say ‘I’m sorry.’”
In response to an e-mail from me containing several questions, Greenlee would only say that efforts to reach Slade were hindered by the fact that she’d changed her name since establishing her Flickr account. He labeled as “ludicrous” any suggestion that photos on Web sites could be appropriated for use in the paper without permission, but failed to clarify what the Press Herald’s policy for using such material is and whether that policy has been revised since this incident. He also ignored a question about why the unsigned explanation was posted online and abruptly taken down after attracting dozens of negative comments. He didn’t reply to a follow-up e-mail.
This case raises serious questions about what constitutes fair use. In general, it’s usually considered ethical to lift brief quotes from others’ work without permission if it’s important to the story (most journalism outlets limit such usage to 75 words or less; I’ve followed that practice here). As for photos, I’ve never heard of any standard that allows someone else’s material to be used without both consent and attribution. Anything short of that could be characterized as plagiarism or theft.
An equally serious issue in this case is how Slade was treated. It took more than two days for her to receive any response from the Press Herald. This amount of lag time is simply unacceptable. As one veteran journalist who asked not to be named commented in an e-mail, “If we had failed to respond for more than two days to an email like hers at any of the papers I worked for, we would have been fired.”
Finally, there’s the matter of attitude. In recent years, declining circulation and recession have finally forced many news outlets to drop their former haughty posture and embrace a more reader-friendly approach. That philosophy doesn’t seem to have made much headway at the Press Herald, given its tardy response, lack of an apology and refusal to discuss the issues involved.
There may have been a worse way the Portland paper could have handled this controversy, but it’s tough to imagine what it could be.
Al Diamon will be covering the Maine media in The Bollard each month. He’ll also be posting frequent updates on thebollard.com. He can be e-mailed at firstname.lastname@example.org.