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Was Newsweek’s Use of Palin Photo Legal?

November 20, 2009
By James L. Hirsen, J.D., Ph.D.
contributor to

The first time I saw Sarah Palin posing in a pair of very short gym shorts for a cover photo for Newsweek magazine, I wondered, “Why would the former governor of Alaska and former candidate for Vice President of the U.S. have given a biased media outlet like Newsweek a picture like that?”

The answer is that she didn’t pose for Newsweek, nor did she give her permission for the magazine to use the photo.

So where did the leggy Palin picture come from?

It had appeared in a magazine, Runners World, where a picture wearing that kind of outfit makes sense.

According to various press sources, Palin posed for the photos with conditions. Someone with the celebrity status of Sarah certainly has the clout to place conditions on photos used by an athletic magazine.

Sarah and her camp were under the impression that her image would appear only in the magazine she was posing for, Runner's World, and no other publication for a substantial period of time.

A contract had been hashed out with Brian Adams, the photographer who took the shot.

It appears that the sale to Newsweek was illegal, and that Adams or his agency may have violated provisions of his contract for some fast cash from the magazine.

Judging by the way that Palin has been treated by most in the mainstream media, hatred of the principles she talks about seems to be motive enough for a magazine like Newsweek to look the other way when using pictures of Palin that were intended for an athletic magazine. The photos were chosen by someone who wanted to disparage Palin on their cover.

A spokeswoman for Runner's World confirmed to AOL’s Daily Finance that a provision in Adams's photography contract stated that the photos of Palin taken at that session would be under embargo for a period of one year following publication. Runner’s World published their cover in August 2009, so the photo that was used on the cover of Newsweek was still under the contractual embargo until August 2010.

"Runner's World did not provide Newsweek with its cover image," the spokeswoman said. "It was provided to Newsweek by the photographer's stock agency, without Runner's World's knowledge or permission."

Sources have indicated that other media including Time magazine contacted Runner's World after the photos first appeared on its Web site in July to breathlessly seek the reuse rights for the photos.

The media inquiries were reportedly referred to Adams. Editors at Runner’s World were aware of negotiations to resell the pictures, but were focused on whether Runner's World received prominent credit.

At this point, typical of a pre-lawsuit situation, lots of questions remain unanswered.

Meanwhile, a post on Adams's blog would suggest that the photographer was unaware of the resale to Newsweek, which would then focus attention on the agency.

The big question with respect to Newsweek is whether or not anyone there knew that Adams, the photographer, was not contractually free to sell the picture.

A Newsweek spokesman claims that the magazine “purchased the photo from an agency and were not aware of any issues with it.”

Maybe Palin ought to consider a lawsuit. It would at least send the right message to the media.

The only statement so far from the Palin camp was directed at Newsweek, calling the use of the cover photo “sexist.”

That apparently hit a nerve with Newsweek editor Jon Meacham who seems to be unconcerned about the magazine’s blatant bias yet felt the need to defend the magazine from charges that would upset feminists.

"We chose the most interesting image available to us to illustrate the theme of the cover, which is what we always try to do," Meacham said. "We apply the same test to photographs of any public figure, male or female: does the image convey what we are saying? That is a gender-neutral standard."

Isn’t it comforting to know that when Newsweek violates journalistic ethics they do so in a gender-neutral way?

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James L. Hirsen, J.D., Ph.D.
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