jtra
Leading Member
http://www.flickr.com/photos/23989608@N00/4276745361
I would have expected the news industry knows something about copyright laws.
I would have expected the news industry knows something about copyright laws.
-
Welcome to the new forums! Please read this first. For known issues we are working to resolve, click here.
The Independent breaches photo copyright on Flickr
- Thread starter jtra
- Start date
shay guevara
Senior Member
An interesting one. Not exactly ethical of them or even legal. Solong as the Flickr terms and conditions are as described then they are not in a good position.
If you want to pursue it, try to find out what their rates are (a call to the BJP may help). FWIW I think the Guardian pays around £160. If you want to pursue them, the unltimate sanction is the 'smaller claims' process in the County Court. To be effective court action has to be seen to be taken as a last resort, so you need to be able to demonstrate a graduated and reasonable series of responses, which you are already doing pretty effectively.
Do not let them waffle on about their legal department or get shuffled off to them. Email back saying you will accept the going rate as settlement of the matter, ask for a response within 14 days and a explanation as to why if they claim they do not have to pay you.
If you need to go further, email offering to go to a binding Arbitration procedure. This puts them on the spot as they have to fess up if they accept. If they refuse and still won't pay, then & only then give them 14 days to pay and tell them that you will issue a claim without further reference if they dont pay up.
Contact your local CAB for an info pack and/or download the procedure details off the net. It is not nearly as intimidating to do as people think and they will probably back down if they see a smaller claims procedure court case looming, if only because, as described.
Shay
If you want to pursue it, try to find out what their rates are (a call to the BJP may help). FWIW I think the Guardian pays around £160. If you want to pursue them, the unltimate sanction is the 'smaller claims' process in the County Court. To be effective court action has to be seen to be taken as a last resort, so you need to be able to demonstrate a graduated and reasonable series of responses, which you are already doing pretty effectively.
Do not let them waffle on about their legal department or get shuffled off to them. Email back saying you will accept the going rate as settlement of the matter, ask for a response within 14 days and a explanation as to why if they claim they do not have to pay you.
If you need to go further, email offering to go to a binding Arbitration procedure. This puts them on the spot as they have to fess up if they accept. If they refuse and still won't pay, then & only then give them 14 days to pay and tell them that you will issue a claim without further reference if they dont pay up.
Contact your local CAB for an info pack and/or download the procedure details off the net. It is not nearly as intimidating to do as people think and they will probably back down if they see a smaller claims procedure court case looming, if only because, as described.
Shay
tuppersson
Forum Enthusiast
Reading through the detailed transcript on Flickr, there may not have been a breach.
The photo was not published in the newspaper as the above couple of responses imply, nor was it hosted on the Independent's site. The Independent's website provided a link to the Flickr stream.
The photo was not published in the newspaper as the above couple of responses imply, nor was it hosted on the Independent's site. The Independent's website provided a link to the Flickr stream.
SteB
Senior Member
Why not contact one of the Independent Newspaper's rivals and offer them the story. Rival newspapers are often only too pleased to print stories critical of their rivals. I think that this would grab the attention of the senior management of the Independent a lot quicker than emails or the threat of legal action in a small claims Court. How about starting with the Guardian newspaper.
JulesJ
Forum Pro
Can we get this staright. Did the Independent copy and post your image on their site, or did they copy the link and have that on their site. If it was the latter I think they have not broken any copyright law. But if they copied the image and had that on their site they would have done so.
jules
--
Solidaritory with Sea Shepherd
jules
--
Solidaritory with Sea Shepherd
Bill Randall
Forum Pro
If there was a breach, I think flickr would want to get involved.
--
WSSA Member #281 on 04-23-09
--
WSSA Member #281 on 04-23-09
Richard Weisgrau
Senior Member
Based upon the image of the actual publication (visible via the link in the OP), it appears to me that the Independent did in fact display the image in its publication. The photo appears rather than a link to the photo. If it were a link, I think there would be no case, because no copy of the image would have been copied and published. However, it appears that the image was published. Flickr's terms and conditions seem to be very clear when the "All Rights Reserved" tag is applied to the image(s).
While my long experience is with U.S. Copyright Law, I do know that it is not substantially different from the UK Law when it comes to photographs. In the U.S. such an unauthorized use of an image would be an infringement by virtue of the publication of the image without permission. A news publication could claim Fair Use defense under the Law as the image was used for news reporting, but that might be a shaky defense in the instant matter since newsworthiness of the use is questionable.
--
Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography
While my long experience is with U.S. Copyright Law, I do know that it is not substantially different from the UK Law when it comes to photographs. In the U.S. such an unauthorized use of an image would be an infringement by virtue of the publication of the image without permission. A news publication could claim Fair Use defense under the Law as the image was used for news reporting, but that might be a shaky defense in the instant matter since newsworthiness of the use is questionable.
--
Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography
SteB
Senior Member
Initially I hadn't realised that the image was not published on paper. I don't claim to understand the finer points about copyright issues. It would appear to me that there is a big grey issue on the display of photographs on websites. I am not saying it is a grey (gray to our trans-Atlantic cousins) area in law as I don't know enough about the law to know this. What I mean is that many newspapers and other media organizations are now making a lot of use of "readers" images - some sent in, and others linked to on photo sharing sites etc. It would appear that no fee is being offered for the use of these images. Yet they are clearly being used to promote and enhance commercial activities. These newspapers and media organizations have traditionally had to properly pay photographers for their use of this intellectual property. However, it now seems the case that they expect to use many of these images for free. The irony here is that these newspapers and media organizations only exist as large commercial enterprises because of intellectual property rights laws. In other words a sizeable proportion of their income is derived from charging people to see their exclusive copyrighted material, and it is difficult to see how they could exist as commercial enterprises without the likes of copyright.
I dare say that a lot of members of the public are just pleased to see their photographs being used and it is their 15 minutes of fame. However, I think that this is being over-exploited as a free resource and it is being rather taken for granted by these media organizations. It is as if the media organizations see the copyright laws as not applying to members of the public and that copyright laws are only enforceable by "those in the business".
So it would be nice if someone could produce some simple guidelines of when these media organizations are judged to have used these images. This is because there are a variety of ways these images can be used on the websites of these media organizations. For instance the actual image file may be stored on either the media organizations own servers, or it may be hosted elsewhere, such as on a photo sharing site. The images may just come from a feed on a site elsewhere, or they may form part of the media organizations own page layout. What is slightly worrying about this that it is very easy to make an image streamed from elsewhere, appear part of a particular website's own material. Therefore, whilst it might technically be a display of a Flickr photostream, people who visit the website would tend to see it as part of this webpage they are viewing.
shay guevara
Senior Member
If its a link to flikr then that is a different ballgame and as someone pointed out a legally grey area. One obvious question is did the Independent gain or profit from the link.
But its still a pretty duff thing for a national newspaper to do.
Shay
Richard Weisgrau
Senior Member
It is complicated from the legal perspective while being simple from an ethical perspective of no one should use another person's copyright protected work without permission. However, I think that in the case we have been discussing there is reason to find an infringement, at least under US Law, which holds that the placement of an image on a Website that is publicly accessible constitutes publication, which in turn requires permission.
But what if the image is not at the Website, but is presented as part of the Website by a virtual link. The absence of the image from the actual page content as uploaded to the Web might mean no publication took place. However, no matter what means was used, there image appeared on viewers' screens when they want to the site. If that is not legally publication, then it has to be legally a Public Display. The public can see the image. An unauthorized Public Display is a copyright infringement. Of course, that is my opinion, and I do not claim to be an expert.
--
Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography
PhotoKhan
Forum Pro
But the thing is, you see, a photo can be displayed without actually copying it:
It can always be argued that the above is only a "reference to". The fact that the "referenced item" actually gets displayed can be attributed to a technological characteristic of the medium.
I can see where they can play loose with this and while being well over the line, ethically speaking, still be perfectly within legal boundaries.
PK
--
“Loose praise may feed my ego but constructive criticism advances my skills”
************************************************************
-------------------------------------------------
http://www.pbase.com/photokhan
(PBase Supporter)
SteB
Senior Member
I don't have any useful contribution to make as I know so little about the finer details of copyright law. However, I'd like to thank everyone for their interesting points as this appears to be a very tricky area. Whilst I had idly thought about this before I had wrongly assumed that there was a clear answer. Whereas what I have seen here appears to indicate that it is not clear cut. I think this has a lot of implications for photographers. Especially considering that the web content of media organizations is becoming more important and there is talk of making people pay for viewing this content.But the thing is, you see, a photo can be displayed without actually copying it:
It can always be argued that the above is only a "reference to". The fact that the "referenced item" actually gets displayed can be attributed to a technological characteristic of the medium.
I can see where they can play loose with this and while being well over the line, ethically speaking, still be perfectly within legal boundaries.
PK
--
“Loose praise may feed my ego but constructive criticism advances my skills”
************************************************************
-------------------------------------------------
http://www.pbase.com/photokhan
(PBase Supporter)
-------------------------------------------------
I'm not legal person so I don't really know how these issues are addressed legally. My observations about this is matter are there are 2 ways of looking at this. From the viewers point of view it makes little difference where the images are located and if you see an image on a web page you tend to just assume that it is part of the web page. Whereas to the person providing the web page there is obviously a big difference between displaying an image that they have and host, and just providing what is essentially a link streaming an image from another website. I know nothing about web page design but it would appear that there is plenty of opportunity for the unscrupulous to take advantage of free images that they would otherwise of had to pay for.
Richard Weisgrau
Senior Member
But the thing is, you see, a photo can be displayed without actually copying it:
It can always be argued that the above is only a "reference to". The fact that the "referenced item" actually gets displayed can be attributed to a technological characteristic of the medium.
I can see where they can play loose with this and while being well over the line, ethically speaking, still be perfectly within legal boundaries.
But the result, no matter what the means, is a public display, which requires permission.
--
Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography
neilcrichton
Well-known member
Here in Canada, there are many lawyers who would give you a free consultation to decide whether or not you have a case, and if so, they would work on contingency, meaning that they only get paid if you win your case. Would that be an option for you?
--
My photos on Photobucket:
http://s485.photobucket.com/albums/rr219/neilcrichton/
--
My photos on Photobucket:
http://s485.photobucket.com/albums/rr219/neilcrichton/
bgD300
Senior Member
For example, if I embed a picture from another site, for example
The picture never actually goes to the dpreview site and dpreview never sends it to you. In fact, the link gets passed to your browser as though I had said "there is an interesting picture on photocamel" and you went and looked at it. It is pulled directly from the photosharing site to your computer by your browser application.
--
EXIF is embedded in photos
Zenfolio site - http://www.puntagordanaturally.com
RF Stock Portfolio - http://www.dreamstime.com/resp129611
The picture never actually goes to the dpreview site and dpreview never sends it to you. In fact, the link gets passed to your browser as though I had said "there is an interesting picture on photocamel" and you went and looked at it. It is pulled directly from the photosharing site to your computer by your browser application.
--
EXIF is embedded in photos
Zenfolio site - http://www.puntagordanaturally.com
RF Stock Portfolio - http://www.dreamstime.com/resp129611
linuxworks
Forum Pro
I got you!
or rather, the mpaa/riaa. I got them, if they use this logic.
think pirate bay. they never posted DATA, only links to it. in fact, it wasn't even a link, it was a link to a set of dynamic links of partial content (torrents are like that).
yet, international (read: american) pressure got the pirate bay shut down. they were following swedish law exactly but america reached across the pond and punished a non-american entity simply because they posted links to links but never posted actual content.
so we have to decide: is posting links 'content' or is it not?
even if the data is hosted 'elsewhere' its, apparently, still considered 'data' as far as some corps and lawmakers are concerned.
--
Bryan
(pic stream: http://www.flickr.com/photos/linux-works )
jonrobertp
Forum Pro
For that kind of use, they owe you some money. Had that happen to me too, by a power utility. After some sorta terse comunication, they sent a small amt., better than nothing. Getting a lawyer is too costly, and not worth it.
bgD300
Senior Member
remove the picture, re-upload under another filename and replace the original with a jpg of text stating that the image was being inappropriately used for profit by xyz corporation (in this case, the independent).
--
EXIF is embedded in photos
Zenfolio site - http://www.puntagordanaturally.com
RF Stock Portfolio - http://www.dreamstime.com/resp129611
--
EXIF is embedded in photos
Zenfolio site - http://www.puntagordanaturally.com
RF Stock Portfolio - http://www.dreamstime.com/resp129611
As a normal person (rather than someone who's self-employed and already has printed forms with VAT numbers and whatever else you need to charge people), how would I go about invoicing a company or individual if I were in this situation?
Would I just write a simple letter demanding the money or do you have to use some kind of special form and allow for taxes and stuff? Is there anything to limit the amount I'd want to charge - if I wanted £5000 for a small, unremarkable photo on page 109 of a local newspaper, could they refuse once they'd published it without permission?
And, even if it's only a technicality that most individuals ignore, how are you supposed to go about informing the UK inland revenue about the money you made and pay your taxes? Who works out what you need to pay for a one-off payment like this? I'm guessing they'll probably sting you for 40% regardless of what else you might earn in a PAYE job?
Would I just write a simple letter demanding the money or do you have to use some kind of special form and allow for taxes and stuff? Is there anything to limit the amount I'd want to charge - if I wanted £5000 for a small, unremarkable photo on page 109 of a local newspaper, could they refuse once they'd published it without permission?
And, even if it's only a technicality that most individuals ignore, how are you supposed to go about informing the UK inland revenue about the money you made and pay your taxes? Who works out what you need to pay for a one-off payment like this? I'm guessing they'll probably sting you for 40% regardless of what else you might earn in a PAYE job?
Keyboard shortcuts
- f
- Forum