Oakland Police Department Takes Photos From Flickr and Asks for the Public’s Help in Identifying Looters

Looter Runs Down Broadway With Items Taken From Foot Locker, Oakland Riots, 2010

I saw an article on the the San Francisco Chronicle web site today entitled “Oakland Police Looking for Looting Suspects.” The article reports on the Oakland Police Department’s latest efforts to prosecute looters who participated in last week’s Johannes Merserle protest that turned violent with rioting and looting taking place after dark. Oakland PD has now released a number of photos of alleged looters from that evening’s protest.

The people in the photos are “involved criminal activity” and could face arrest and prosecution, said Officer Jeff Thomason, a police spokesman.

Interestingly enough I recognized several of the photographs that the Oakland PD had released as my own photos that I’d taken the night of the riots and had posted to my own Flickr account. I was never contacted by the Oakland PD regarding their use or distribution by Oakland PD. It’s interesting to see law enforcement taking photos by citizen media and using them this way. I wonder about the legality behind this sort of use. Would the Oakland PD be able to also rebroadcast or redistribute photos or video from established mainstream media? And I wonder if the police have to abide by the copyrights of individual photographers in redistributing their work or if they have some sort of legal protection.

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  1. I also wonder if these photographs would be sufficient evidence to arrest or prosecute. Photos from a store surveillance system are one thing, but photos from the public seems like a bit of stretch.

  2. Marcus Griep says:

    Unfortunately, there has been a long-standing common-law argument for the sovereign to use copyrighted material without compensation. It’s a big reason why, when working for the government to produce something creative, you get the whole deal under contract before handing anything over. The contract can then bind the government to the private agreement. I don’t think there’s much you can do here if they go redistributing it, but the government can’t “sub-license” it’s sovereign immunity. Thus the outlets may need to license from you.

    Or I could be talking out my rear-end. IANAL.

  3. RDOwens says:

    Is it any different than using a copyrighted photo from a high school yearbook and displaying it for a missing person? I have no issue with this use.

    Now if they claim the photographs display criminal activity, I think they may run into issues. Just because it looks like someone is stealing a pair of shoes from Foot Locker, can that be proved from one of your photographs? I think not.

  4. William Beem says:

    I’ve seen this happen before. Cops will take photos from Facebook, Photobucket, etc. and then distribute them to the media. Then private media repeatedly re-use the photos following the story. I wouldn’t be surprised if your local TV & Newspapers started using these images if they pick up this story, claiming that they received the images from Oakland PD.

  5. Trevor says:

    I recently discovered that some of my photos of local graffiti were used by the police in gathering evidence against someone. The photos were all published with a Creative Commons Licence, so I guess they’re fair game. Bit frustrating, though; I took the photos because I liked the guy’s stuff, and ended up providing the police with evidence against him.

    The police did not inform me at any point. (I found out because the suspect was a Flickr contact and he recognised my photos when they showed him!)

  6. At the very least they should give you a free pair of nikes for your trouble.

  7. Andy says:

    Has the legal system not heard of Photoshop? Not that your photos are Photoshopped, but so many could easily be faked.

  8. Adam Harrison says:

    Are they releasing the pictures for the papers, like the SFGate, to publish? In which case the papers are profiting off the images. In which case Oakland is stealing your pictures. I’d write them a letter and ask them why they feel it is appropriate for them to give away your pictures.

  9. jerry deese says:

    So, the question is: who are the bigger assholes? the police for using the photos to catch the looters? Or the looters who use the excuse of the verdict to vandalize and steal?

  10. Rob-L says:

    I find it ironic that the police are quick to tell the public (wrongly in many cases) that they’re not allowed to take photographs of something/someone on one occasion, but on other occasions they actually hope that someone in the public captured an event on a camera or video.

  11. nevin says:

    Go police, so happy they are using new media in Oakland.. I know they have used Facebook and MySpace for info.

  12. JeffPHenderson says:

    William, it doesn’t matter who gives the photos to the media, you still own the copyright to them. It is the media outlet’s responsibility to verify copyright ownership before they use the photos. The Oakland PD has no liability if the newspaper publishes your copyrighted photos without your permission.

  13. JeffPHenderson says:

    As pointed out in several posts above, the photos alone would probably not be enough evidence to prosecute those pictured in them. What the police do is show the suspect the photo and then ask them ‘so did you steal those clothes from the Foot Locker?’ A majority of the suspects will admit guilt, which IS enough to prosecute them. Sneaky, yes.

  14. Clark says:

    Are you serious? If it were your place that was looted would you be asking these questions?

  15. Eric says:

    Police do have to abide by copyright law.

    There’s no general exemption for the government’s use of copyrighted works. As a result, the “official” government use of photos from Flickr or elsewhere is subject to ordinary copyright law analysis.

    However, the police may also claim fair use under 17 USC 107.

    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Based on what you’ve described, the police use of your images to “find looters” certainly appears to be fair use. The “nature and use” factor and the “effect on the potential market” factor swings so heavily in the governments favor as to make this pretty clear cut in my opinion.

    As a result, because the use is fair use, the CC license issue doesn’t even come into play.

    Additionally, because of the newsworthy nature of the image content, news outlets may also be able to claim fair use – depending on the nature of the reports.

  16. Thomas Hawk says:

    Eric, interesting analysis. I figured something like that was probably the case.

  17. Marcus Griep says:

    An interesting read, this posting testimony from 2000 by then Register of Copyrights Marybeth Peters (still the current register) to the Subcommittee on Courts and Intellectual Property, Committee on the Judiciary, regarding “State Sovereign Immunity and Protection of Intellectual Property”

    In the testimony, she notes that in general, there is not specific immunity for states from copyright, but that in several instances in the past 25 years, the Supreme Court has extended immunity to the state in instances of copyright infringement. She also brings up some suggestions and solutions that may be used to resolve the issue.


    “It is only logical that in the current legal environment, without an alteration of the status quo, infringements by States are likely to increase. Only Congress has the power to remedy the existing imbalance, and it is the recommendation of the Copyright Office that it do so. The Supreme Court’s rulings and State’s rights must surely be respected, but the current state of affairs is unjust and unacceptable. Congress should use the tools it has to prevent the successful assertion of state sovereign immunity where it has become a tool of injustice.”

  18. If I may throw in my $02 as an attorney:

    I am not versed in copyright law, but I do know that the Fair Use Doctrine does provide a lot of leeway with regard to both usage of copyrighted material, as well as usage of people’s images without their permission (I recently had an encounter with a young man who had stepped into a picture I was taking and then came up to me to tell me that because I took his picture without his permission, he could “legally break me camera” – my Bronx heritage came out and I explained what else would wind up broken if he tried to do that).

    But let me say something about the Evidence Code here in California. The people who note above that the pictures themselves do not show a crime in commission (after all, it is a picture of a young man holding sneakers) may be right, but certainly the picture itself is evidence and rarely is it one piece that convicts someone, but the totality of the evidence presented.

    Wat is the role of the photographer? The photographer could be subpoenaed to court – which he or she must answer and appear, else face a bench warrant – for the following:

    (1) To authenticate the picture. Before any evidence can be submitted into evidence, it must be authenticated to be genuine or an accurate copy of the original. The person to do that is the photographer. Did you take this picture? What was your geographic location when you took it? What day did you take it? Did you yourself download the picture? Did you do any processing to the picture after it was downloaded from your camera? What processing did you do? As you can see, the issue of Photoshop comes up and the photographer – who is sworn in as a witness, so any testimony is given under penalty of perjury – must reeal any changes he or she made to the photograph.

    After the photograph is authenticated, the argument between lawyers begins as to whether it is hearsay or the whether the best evidence rule applies, but the photographer’s work is done.

    (2) To testify as a percipent witness. If the photographer – or you as a bystander – saw what happened, you could be called to testify as to what you saw. If the photographer saw that person enter the store, grab the sneakers, and then leave the store, and then took the picture, there is no reason why he or she cannot testify to the events leading up to the time when the shutter clicked. On the other hand, if the photographer’s memory is, truthfully, that they were shooting rapidly and cannot recall whether they saw the person in question actually take the sneakers, then so be it – that is there testimony, and its credibility will be weighed by the trier of fact (usually a jury, although a defendant can opt for a bench trial and then it would be a judicial officer).

    To those that would say it is circumstantial evidence, you are right . . . so what? Circumstantial evidence is simply evidence that is not direct testimony as to what was visually or audibly witnessed. Blood splatter, fingerprints, tire tread marks, DNA in a rape kit are all examples of circumstantial evidence, and convict people.

    Also, I do not see any 1st Amendment protection for photojiurnalists here. The young man is not a source and there is no reason why a photographer cannot testify as described above.

    So anytime you take a picture such as this – or really, any picture – if it is relevant in a court proceeding, civil or criminal, and you can be identified, then you can be subpoenaed to come to court. If you post pictures on a public forum such as Flickr, you assume the risk of being a witness.

  19. […] Thomas Hawk’s images are being used by police to pursue Oaklnd looters: […]

  20. Thomas Hawk says:

    Stephanie. Thank you for that insightful and thoughtful legal analysis. I suspected as much.

  21. Thomas, rereading it, sorry for the mistyping; I can spell, I just don’t always proof my work, especially since I typed that as I was trying to get out the door to go to a funeral.

    But I hope people get the gist. It should not deter you from engaging in street photography, because simply walking in public makes you a potential witness to what may happen around you. We cannot let that deter us from living our lives.

  22. Roger Krueger says:

    I’m far less concerned about the copyright ramifications than I am about this being used as a reminder to fuck up any photographer they see next time something like this goes down.

  23. MR says:

    You should be glad they didnt attribute it to you. Do you want Gangs finding you and taking you out because you took the photo that got them arrested?

  24. John S says:

    Chief Batts was a great police chief in Long Beach, and it appears he is providing innovative leadership to Oakland as well. His intent (I believe) is not to misuse photos, but rather use them to identify bad guys and remove them from the streets.

    I am not a police advocate, and in most cases (in the LA area) I have little/no respect for our law enforcement agencies. However Batts led a good department in LB and he should be viewed as a guy with the best intersts of the ciizens of Oakland at heart.

    The photoa are snmall stuff, and if they help so much the better.

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