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This Just In: Media

Photographer teaches Herald a copyright lesson

By Dan Kennedy

The Boston Herald learned a rather expensive lesson in Internet copyright law recently when it agreed to pay a $3500 out-of-court settlement to a photographer whose work it grabbed off the World-Wide Web.

The New York-based shooter, 1984 Boston University graduate Bill Swersey, says he would gladly have taken a $150 reprint fee if someone at the Herald had simply asked him before using the picture &emdash; an image of a flamboyant Fenway Park concession worker, Dave Kerpen, who was fired last summer.

The Herald's attorney, Robert Dushman, refuses to concede any wrongdoing on his client's part, saying publication of the picture fell within the "fair use" provision of copyright law: the Herald's story on the firing noted that Kerpen had achieved such notoriety that "a Discovery Channel photographer included Kerpen in an art gallery on the World-Wide Web." But Swersey's lawyer, Andrew Epstein, argues that the Herald erred by running the photo unadorned, without showing any of the surrounding Web graphics.

Swersey, a freelancer who spends much of his time in Russia, says he was especially perturbed because the portfolio he put together last summer for the Discovery Channel Online (http://www.discovery.com) was filled with numerous, clearly marked copyright notices.

"In this age, when journalism is transforming from print into electronic, you've got to have some confidence that your work is protected," Swersey says. "Never in my wildest dreams did I believe that a big-city newspaper would take a photo off the Internet and run it without crediting anybody. There's got to be some sort of checks and balances at a newspaper so that they don't use the Internet as a free source of photos."