$3,500 To Freelance Photog For Image Taken From Web p.13

By: David Noack Boston Herald pays to settle a case revolving around a photograph
taken for Discovery Online but printed in the Herald as well

The Boston Herald has paid $3,500 in an out-of-court settlement for grabbing a freelance photographer's work off the Discovery Online Web site and publishing it in the newspaper without the photographer's permission.
The agreement with the Herald, which was reached in late March, was sparked by a copyright infringement lawsuit filed in December 1997 in U.S. District Court in Boston by Bill Swersey, a New York-based photographer. He claimed the newspaper used the photograph he took for Discovery Online without his permission.
The legal arguments centered on whether the Herald had committed copyright infringement or was using the picture according to "fair use" standards. While the Herald settled the case, it did not admit to any wrongdoing or liability.

A Web turnabout
In the area of online copyright and fair use legal controversies, it's usually newspapers that go after Web site developers for posting pictures and text taken, linked or framed from the virtual publication. But in this case, the print newspaper was the culprit.
Swersey is a freelancer who has shot for the New York Times, Time, Newsweek and other print publications.
The subject of the photograph was Dave Kerpen, an entertaining concession worker who was selling soft drinks last year at Boston Red Sox games at Fenway Park. Swersey was on assignment for Discovery Online (http://www.discovery.com), the Web version of the Discovery cable channel. Last July, he was retained to shoot "slice of life" pictures from around New England for an online "Picture of the Day" feature. He was paid less than $2,000 by Discovery Online for the work.

Photo Appears in Herald Weeks Later
The picture of the vendor balancing soft drinks on his head was published on the Discovery site on July 18. The photograph was licensed for publication with Swersey's permission. The Discovery Online Web site includes a copyright disclaimer link at the bottom of the page. A few weeks later, on Aug. 6, the same photograph appeared in the Herald, accompanied by some other photos and a story about Kerpen being fired from his job.
"I decided to pursue it in large part to make an example," said Swersey. "Because I thought it was a very important time to make a case like this."
He first contacted the Herald to find out why the picture was used, but said he was given the runaround.

Would have Wanted $150
Swersey, who also registered the photograph with the U.S. Copyright Office, said if the newspaper had called after the photo first appeared online and asked to use it, he would have charged only $150.
"Once it was used without my permission, I was going to take a lot more than $150, but maybe we would have settled for $500 to $1,000. I think they should get a slap on the wrist so they don't do that to anyone else," said Swersey, who is now in Russia organizing the InterFoto Photojournalism Festival, an annual event.
Robert Dushman, the newspaper's attorney, said the Herald decided to settle the case to avoid the cost of a trial. "Although I thought we had a reasonably defensible claim, it was going to cost us more to defend it than he was willing to settle for. I actually looked at this as a kind of a nuisance settlement," said Dushman, who noted that the settlement included the rights to use the photograph in the future.
While the settlement does not establish any legal precedent, Dushman said that maybe the newspaper should have pursued the case in court in light of all the publicity the issue has received.

'It wasn't Fair Use'
Andrew D. Epstein, Swersey's attorney, said the Herald's "fair use" argument in using the photograph was unfounded.
He said the Herald cropped the photo out of Discovery's Web page, making it appear like it was a Herald picture.
"It wasn't fair use. They closely cropped the photograph. They could have had somebody looking at the computer screen and there was the picture. They could have taken a picture of this vendor looking at the computer screen with his picture (at the ballpark) up on the screen. That might have been fair use. That would have been newsworthy. A picture of the kid looking at himself on the monitor," said Epstein.
"If the Herald has used the photograph with all of the surrounding Web site information that is shown on the computer monitor, then the use may have been fair use.
"My contention is that the Herald overstepped the bounds of fair use and infringed Bill Swersey's copyright," said Epstein.

?(Editor & Publisher Web Site:http://www. mediainfo. com)[Caption]
?(copyright: Editor & Publisher June 13, 1998) [Caption]