Falling bear in Colorado leads to fight over viral photo rights

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Courtesy of USA Today

First, the bear was tranquilized. Then it fell. Then it went viral. And now it may be the center of a lawsuit.

This past Thursday, Andrew Duann, a student photographer for The CU Independent, snapped an instantly-iconic shot of a large black bear falling from a tree near a University of Colorado Boulder residence hall village.

Duann’s picture captures the 200-pound animal in mid-fall, its limbs outstretched, a large air mattress ready to cushion the point of impact. The bear had been tranquilized by local wildlife officials and was subsequently taken into custody for its own — and others’ — protection.

After being published in the Independent, the photo almost immediately spread across every inch of the Internet and mass media. As Denver’s Westword confirms, “[W]ithin four hours or so [of its posting], it had become a Facebook and Twitter smash, as well as winding up on Gawker, Reddit, Yahoo and more traditional news platforms such as CBS4, 7News, Fox 31, The Boulder Daily Camera and The Denver Post. . .The surge of traffic eventually crashed the Independent‘s site.”

In the wake of the photo’s web success and its republishing by other news outlets, Duann is looking into legal action against his own paper. As Poynter’s Andrew Beaujon reports, Duann is “upset that the paper’s advisor, Gil Asakawa, allowed publications around the world to reproduce the photo, asking most outlets only for it to be credited to Duann and the CU Independent.”

Duann considers the bear shot his copyrighted property, even though he is on the Independent staff and apparently supplied it willingly for the story it accompanied. Reporters and photographers are not paid at the Independent, and Duann told Beaujon he had not signed a contract outlining his specific rights in cases like this.

In this respect, the larger lingering question: At campus newspapers relying on student volunteers or lacking formal employee contracts, who is considered the owner of published content — stories, photos, editorial cartoons, etc. — the student creators or the papers?

Asakawa, the Independent‘s adviser, says that in this situation the paper owns the copyright, but top staff “had already decided that money they got for the photo would go to Duann.”

Frank LoMonte, the executive director of the Student Press Law Center, respectfully disagrees. In a blog post headlined “The Grizzly Truth About Copyright Law and Student Photographs,” LoMonte states that the U.S. Copyright Act and related legal precedent side with Duann.

Ultimately, he writes, “Everyone appears to have acted with good intentions — the student, to get his newspaper a terrific action shot free of charge, and the adviser, to get his student a credit-line in a bigger newspaper. So this flap ought to get readily resolved short of the courthouse. . .And it ought to remind all student publications to clarify the terms of employment and ownership, to avert just such disputes in the future.”

The bear is OK, by the way. It has been tagged and released back into the wild.

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