Independent is a bit rubbish to photographers

by scotslawstudent

19-1-10: This has now been resolved – an apology was given and an invoice for £100 is working its way through the Independent’s offices. I think that’s a good resolution – image licensing is something that the newspaper does every day after all. Congratulations to PeteZab for sticking with it to the conclusion. A lot of commentators on the flickr thread had written his chances off.

Citizen journalism is a big deal these days, and uncharitably it has been linked to the recently reduced profitability of publishing companies behind the newspaper industry. Citizen journalists don’t really know what they should be paid and professional journalists know all too well. I really don’t know what I’d ask for if a photograph I own ended up in a newspaper – £10? £1000? It all depends on the details of the case. Apparently £150 is about what an English person should “expect”, but that’s a Man-Down-The-Pub’s-guess of a figure. I have no idea about Scottish people whatsoever.

One recent example of this was the Independent running a series of pictures of the recent (it’s only just away in my area) snow. They basically just hooked, to be hip and technical, a steam from using the Flickr API. This is, a) an easier way for websites to embed Web 2.0 content into their own sites and, b) (according to the Independent) apparently a hidden loophole in the pretty general rules on what constitutes publishing photographs. Does publishing count as copying the image from Flickr’s servers and putting it onto an Independent server or can it include embedding it into a commercial website and surrounding it with adverts? The Pirate Bay case law provides an international opinion.

It might not seem like a big deal – a newspaper puts a slideshow of pretty pictures on its website. Except that they just embedded the slideshow, they didn’t go out and get permission to use the photographs. When one photographer noticed one of his images, to which he had reserved all rights, being used in the stream he sent off a message to the newspaper asserting his rights. This is quite right and is how these things work, you need to assert your rights or the other party will never know you’re unhappy with their behaviour.

Dear Independent,

I notice you’re using one of my images without any acknowledgement (or permission) on your website, the link is as follows, in-the-uk-se…
The image is on my Flickr site at the following address and is marked as ©All rights reserved.
I’m assuming this is an oversight; I am quite happy for you to use my image but this is, naturally, subject to the appropriate payment rate. I look forward to your response in due course.

This (I think quite reasonably) treats the issue as a transaction for image licensing, something a newspaper should be intimately familar with. Those pictures don’t get into the paper by magic. It’s not even refusing the paper retrospective permission to use the image with all the hassle that entails. Retrospective licensing is a very easy and clean way to resolve copyright infringement that never seems to be used by those suing individuals, for example RIAA v. Tenenbaum.

The reply from The Independent pretty much exemplifies why lots of people don’t like copyright these days. Here the big content company assumes that the smaller player waived his copyright by putting it online. The reverse would never be entertained – newspapers retain copyright over their online editions because that’s how copyright works and so it’s quite a clear double standard. I quite like copyright in principle but the imbalance in the scale of the players involved is one of the starkest in law.

Reply from The Independent, Sent: Thursday, January 07, 2010 5:46 PM
We took a stream from Flickr which is, as you know, a photo-sharing website. The legal assumption, therefore, is that you were not asserting your copyright in that arena. We did not take the photo from Flickr, nor present it as anything other than as it is shown there.
I do no consider, therefore, that any copyright has been breached or any payment due.

As you can see that was ten days ago and the photographer has not been paid or, indeed, any right to the photo has not been accepted. The assumption that copyright has been actively waived, instead of the probably safer (though more expensive) assumption that copyright has been passively retained, means that it pays for content that the creator notices they used (and only those with determination to fight through the bureaucracy) rather than content that they use.

My copyright experience – watermarking

More regular readers of the blog may have noticed that I have started putting the characters “4dd6465fc78a86d0987870f88dffcb9c” at the bottom of my posts, when I remember, this is because I was the victim of an RSS scraper blog which copied the entirety of my “Legal highs – Not suitable for human consumption” post including the title, which I was pretty proud of and even seemed to be reasonably original back then. It’s there so that my posts can be found by searching for this 128-bit number instead of the words which I’ve used (which are less identifying). It’s not related to my rights, it just means I can track infringements down and show they come from me. This is why people should consider watermarking images which they put online, it’s not so that you have copyright, it just helps in enforcing your copyright.

Hat tip to: Boing Boing

(Trivia: The code at the bottom of my posts is the MD5 checksum I generated from a copy of the Copyright, Designs and Patents Act 1988, which I thought would be a nice geeky touch.)