ALISON STEWART, host:
The tug over the pug has copyright enthusiasts griping away - Truman the pug, to be exact. Truman's picture was on his owner's blog and Flickr account. She was really surprised when she saw a picture of Truman incorporated into a TV holiday greeting spot on the NFL Fox sports network - Photoshopped, complete with a Santa hat. So did the Fox rip off the little guy's image? The owner sure thinks so, and blogged up a storm about it. But as one poster responded to the story, quote, "While I don't side with you or Fox on this, you did put the picture on the Internet."
Jason Shultz is an associate director of the Samuelson Law and Technology and Public Policy Clinic at U.C. Berkeley Law School and a fellow at the Electronic Frontier Foundation. And he's been writing about photo misappropriation. Hi, Jason.
Professor JASON SCHULTZ (Associate Director, Samuelson Law, Technology and Public Policy Clinic, U.C. Berkeley School of Law; Fellow, Electronic Frontier Foundation): Hey, there.
STEWART: So let's say somebody puts up a picture of their dog on Flickr or on a blog. And they've indicated on pages that this content is copyrighted, that it's all rights reserved, and someone comes along, decides to use it. Does that person have a legal case?
Prof. SCHULTZ: Well, this is the thing, is that we have a sort of an unprecedented explosion of creativity online with millions of photos going out. And it's really something that copyright law hasn't really dealt with very well. So we don't really know in all the circumstances.
But one of the things is that it really comes down to - on some level - what you've said about your photo what people can do with it, and then what the other person's doing with it, whether it's commercial or creative or not. So, on the one hand, when you put photos up online, you can say all rights reserved, or you can use what some people are calling a creative comments license.
STEWART: So Jason, a dog is one thing, but what if someone has a picture of their kid online? A lot of people use these photo-sharing sites, and they may have the cutest-looking kid, but they don't want to see that kid end up in a montage for an advertisement to sell something. What piece of advice would your give them?
Prof. SCHULTZ: Well, there are two things that parents can do when they post photos of the kids, or really anybody who wants to sort of control the use of their image. One thing is that many of these photo-sharing sites have privacy options. So, like for instance, Flickr, you can limit certain photos to only your friends or family or a very selected group of people, and that's one way to keep it out of sort of the public eye.
The second thing is, actually, that if someone takes your photo and uses it commercially, you actually can demand that they stop. There's a right to publicity, which is a part of law that says that, you know, anyone who takes your image and uses it commercially violates your rights. So you do have some legal recourse. But oftentimes, the law is kind of an extensive and cumbersome thing. So using the privacy options can often be the easiest and the most efficient thing to do.
STEWART: Let's talk about professional photographers for a moment. A friend of yours, Lane Hartwell, recently had one of her pictures used in a spoof video that ended up on YouTube that was used without her permission. Now, on your blog, you said, you know, you feel really bad for your friend's situation, but that use may not be illegal. How can that not be illegal?
Prof. SCHULTZ: In Lane's case, what you had was a photograph of someone who's in the sort of San Francisco tech world being used in a spoof video that was actually quite creative and clever. And in those kind of situations where people who take something and sort of reuse it or remix it, the theory's doctrine kind of allows for that, as long as the creativity is what they call transformative. And that doesn't mean anyone can take any photo, though - and this is the big point, is someone who just takes a photo and uses it in a TV ad or in a magazine, that can definitely be a violation of copyright.
But this was a noncommercial transformative use. And those things tend to be fair in the same way that someone who does a parody or a criticism or a movie review can quote from the original.
STEWART: What about Truman the pug? Was he wronged?
Prof. SCHULTZ: Well, I have to say, if they just keep the photo and they used it for a commercial advertisement, they probably violated the law. I mean, it depends on the situation. But, again, if that's all they're doing, and they're not adding their own creativity and they're doing it for a very commercial purpose, it's very different than Lane's situation, where it was noncommercial and very creative and transformative.
STEWART: Now, as a blogger yourself, you write this blog called Law Geek. What would you do if someone took one of your images, say, a picture of you on the site, and then they used without your permission?
Prof. SCHULTZ: Well, if they were adding their own creative commentary to it, I would say it's a fair use, and they are totally able to do that. If they were just taking it and commercializing it, you know, without adding any of their own material, then I might have a problem. And I think everyone just has to make that judgment call for themselves.
STEWART: Jason Schultz is an associate director of the Samuelson Law, Technology and Public Policy Clinic at U.C. Berkeley Law School and a fellow at the Electronic Frontier Foundation. And I'm guessing will soon - his picture will soon be spread around the Internet in creative ways.
(Soundbite of laughter)
Prof. SCHULTZ: And more power to free speech, right?
STEWART: Jason, thanks a lot.
Prof. SCHULTZ: Thank you.
STEWART: And you can check out the picture of Truman and the suspiciously similar pug that was featured on Fox. That'll be on our blog at npr.org/bryantpark.