Please Read First

My name is Hal C F Astell and I am a friend of Bryan P Miller, who has been arrested on two charges of first degree murder (among others). Please read the Blog Statement to the right before any posts.

I will not comment on the case itself. This blog is entirely dedicated to the media's reporting of it.

Monday, January 19, 2015

Hey, Pops is on the News!

I discovered that Bryan had been arrested quickly, because I was on Facebook at the time and news travels fast online.

I have one friend who lived with him for six months and two who dated him. They recognised his house on news reports even before the media started spelling Bryan's name correctly. They were shocked. I was shocked. The whole steampunk community, to which we all belong, was shocked.

But, the next thing I know, my daughter is ringing my wife. 'Hey, Pops is on the news!' she said.

We don't have television service, so I couldn't tune into News Channel 3, but I could view the video online at their website, Sure enough, there I was, in a photo that my wife had taken at a recent steampunk event and posted to Facebook. Bryan and I appear as part of a group of nine steampunks.

My wife has taken thousands of photos over the last few years as one of the chroniclers of the local steampunk scene, but this is one of my very favourites because it's full of diversity. Each person in the picture comes from a different walk of life, is wearing a different outfit, has a different expression on their face. It's a great memory of a great event.

And now it's an image broadcast on the news in a report about a murder case. News Channel 3 had not sought permission to use it and they carefully presented it without the watermark that identified my wife as its copyright owner. It was also shown in the video at the point that covered Bryan's interests, given with the implication that they were strange, not unbecoming an alleged multiple murderer.

It is fair to associate me with Bryan because I am his friend, though I would question any need to do so in a news story as I didn't meet him for more than a decade after these crimes were committed. It is absolutely not fair to associate me, however, or any of the other people in this photograph, with the crimes of which he has been accused. It is absolutely not fair to suggest that we are somehow strange people and the scene to which we belong is somehow an appropriate one for murderers.

With my wife in tears, I tried to reach News Channel 3 but had to settle for e-mailing Mike Gertzman, the Digital Managing Editor, whose details were on the website. This was late on Wednesday, 14th January.

He replied the next day to state that they had removed our image from the video. However, he did not offer an apology either for the unauthorised use of my wife's photograph or the hurt that it had caused. I checked and found that the current page contains a re-edited version of the video that did not include this image.

Yet, later that day, we were informed by a friend that it had been broadcast a second time on News Channel 3 after Mr Gertzman's e-mail to me. I e-mailed him raising further concerns just into Friday, 16th January, but have not received a reply since.

I am not a lawyer, but I am a published author who is somewhat aware of copyright law and the fair use clauses that can be found within it.

It could be argued that News Channel 3's use of the image is in the public interest, though I would argue against this interpretation, as eight of the nine people in the picture are not involved in this news story at all. Perhaps our faces could have been blurred, as I have seen with Bryan's daughter where her image has been used (she is a minor).

It could be argued that News Channel 3 could safely include such an image within a news video without seeking approval from the copyright holder, though this helpful page from the Texas Center for Community Journalism certainly suggests that they couldn't. It mentions that 'journalists should know better' and quotes the Code of Ethics of the Society of Professional Journalists:

Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone's privacy.

I wonder what overriding public need warrants the use of the images of eight people within a news report about a crime with which they have not been charged, implicated or associated in any way. It could be argued that the negative light into which we eight were placed could constitute false light defamation but, as I mentioned, I am not a lawyer.

Ironically, section 3 (Our Content and Intellectual Property Rights) of the Terms of Use at highlights how they claim copyright protection on all content on that site:

3.1 Content on the Site. All materials published on the Site or Services including, but not limited to, news articles, photographs, images, illustration, audio clips and video clips, trademarks, logos, and other materials (the “Content”) are our property or the property of our affiliates or licensors, and are protected by copyright and other intellectual property laws.

3.2 Your Right to Use Site Content. You may use the Content only for your personal, non-commercial use, and you may download or print a single copy of any portion of the Content or other downloadable items displayed on the Services only for your personal, non-commercial use, provided you do not remove or modify any trademark, copyright, or other notices contained in that Content. You may not modify, copy, publish, upload, post, transmit, sell, create new works based upon, or distribute the Content or the Services in any manner without our written authorization.

As a film critic, I understand the concept of transformative use, but News Channel 3's actions, combined with these terms of use, suggest that they are willing to use the copyrighted material of others without seeking permission and then claim copyright over them, restricting the public from using them further without their 'written authorization'.

The scary thing is that this is not a single, isolated instance. After the story broke, many journalists from many news organisations trawled Bryan's Facebook page for photos to use in their reports.

I have spoken with a number of the photographers and their subjects over the last week. None so far have received a request to use their copyrighted images and none so far were even notified that they had already been used.

Some photographers and subjects have reached out to news organisations, as I did, to have their images removed from slideshows or videos in news reports. Some are consulting with lawyers to find out the legal strength of the ground they stand on.

Hopefully I can soon provide more solid information as to what is legal and what is not, as well as any legal recourse photographers and their subjects might have in such situations. I would highlight to any such that you are not alone.

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