AURORA | The Aurora Police Department has removed a photograph that was included in a news release yesterday after The Denver Post insisted the local law enforcement agency stop circulating the image.
In a tweet sent late yesterday, Aurora police said the department received a cease and desist letter from The Post, instructing investigators to remove an image of a masked man holding a U.S. flag during an organized protest at a U.S. Immigration and Customs Enforcement facility in Aurora July 12. Nearly 2,000 people attended the rally at the north Aurora facility.
An open records request revealed the cease and desist letter from The Post came in the form of an email sent to the city’s records unit at 4:31 p.m. yesterday. Post Editor Lee Ann Colacioppo sent the email, and a lawyer for The Post was copied on the message.
Earlier in the day, Aurora police issued a news release asking for the public’s help with identifying a cadre of people suspected of vandalizing flags outside of the local ICE facility, which is operated by the GEO Group Inc., during the protest. Police included several still images in their release, including a photograph of a protester taken by Post photographer Hyoung Chang.
A spokesman for Aurora police said The Sentinel would have to file an open records request to ascertain where the department obtained the other images included in the news release.
Aurora Police never asked for The Post’s permission to distribute Chang’s photograph, and later added the Aurora Police Department logo to the image. That constituted a violation of The Post’s copyright, and did not fall under the legal safeguard of “fair use,” according to a letter Post Editor Lee Ann Colacioppo published Wednesday.
“The Aurora Police Department’s use of our photograph is a clear violation of copyright law and The Denver Post’s terms of fair use,” Colacioppo wrote. “We defend both vigorously.”
Steve Zansberg, a First Amendment attorney who has represented numerous Colorado media outlets including The Sentinel and The Post, agreed, saying the police department’s use of the image did not constitute fair use.
“It’s a wholesale misappropriation,” Zansberg said. “They (Aurora Police) were not commenting on the fact that The Denver Post took this picture. They were using it for their purposes of law enforcement.”
In order for a copyrighted material to fall under the terms of fair use, the material generally must be altered in some way, typically in the form of commentary or parody.
The photo’s publication on APD channels also blurred the lines between the newspaper and law enforcement, thrusting the integrity of The Post’s editorial independence into question, according to Colacioppo.
“Aurora’s use of the photo suggested that we acted in partnership with law enforcement,” she wrote.
Zansberg said even the appearance of a newspaper working in coordination with a police department would be concerning for any news organization.
“It undermines the independence of the press to have a false association of affiliation or endorsement,” he said.
In an email, Aurora Police Spokeswoman Crystal McCoy said she was not aware of the department receiving any similar cease and desist requests from a media organization in recent years.
Zansberg said he couldn’t recall other examples of police departments using protected news materials without linking to the original source.
“I’m not aware of many other instances where law enforcement agencies have taken steps that require this type of response,” he said.
Zansberg, who works at the private Denver law firm Ballard Spahr, said calls to stop circulating copyrighted images or news stories are typically targeted at politicians who peddle positive coverage during campaign season.
In a tweet sent Wednesday morning, police said they offered to link to The Post’s photograph, but representatives for the newspaper “refused that offer.”
Colacioppo rebutted that claim, saying she never discouraged police from linking to The Post’s image.
“In fact we urged them to do so,” she wrote in an email.
Police have since deleted that tweet. The department issued a formal statement apologizing to The Post shortly after 3 p.m. Wednesday.
“We want to express our regret in how we characterized The Denver Post’s reaction to our use of one of their images,” the statement read. “At no time did The Denver Post insist that we not link to one of their articles containing the image in our pursuit of suspects of criminal activity at a recent protest, and we were in error in stating otherwise. We respect their copyright and understand its critical role in journalism. We will continue to communicate with them on the appropriate use of their materials in times of public interest. The Denver Post has a long history of helping spread the word on important community matters, as they have in this instance, and we are committed to working closely with them and other media outlets.”
The department concluded the letter by linking to The Post’s recent coverage of the protest.
McCoy said since posting the news release yesterday, local investigators have received “several tips” regarding the “persons of interest” featured in the images.