Email by Telegraph Photo Editor Causes Copyright Infringement Stir

After discovering his photograph used without permission on The Telegraph’s website, photographer Jonathan Kent contacted the newspaper asking to be compensated for the unauthorized use. He then received an email from deputy picture editor Matthew Fearn, who defended the newspaper’s actions, stating,

[Due to the] ever-shifting nature of news – in particular with the advent of online publishing – […] it is not always possible to secure copyright clearance before pictures are published.

Our industry therefore adopts the stance that if a picture has no overwhelming artistic value and if there is no issue of exclusivity (ie it is already being published online or elsewhere) then no reasonable copyright owner will object to its being republished in exchange for a reasonable licence fee. The only alternative to such a stance is not to publish pictures at all unless they come from a commercial library, the available range of which will inevitably be inadequate.

[…] In this instance, and in light of what you have told us, we have no reason to doubt that you are the copyright owner for this picture. However the blog from which it was taken gave no indication as to the copyright owner and no contact details. We therefore used it (in fact we inadvertently used it again for some four hours this morning) in the normal way, which is to say that we were always prepared to pay the industry standard rate.

Fearn has reportedly offered Kent £400 to settle the case, arguing that it is a higher amount than Kent would be awarded by the court.

Telegraph’s picture editor caught in copyright infringement blunder [BJP]

Image credit: journalist by alexgamela

  • Simon Giroux

    seems absolutely fair

  • Andrew9909

    It might ‘seem’ fair, but it’s a cop-out on the part of the newspaper. 
    If their argument is legitimate, then surely I can ‘use’ a car, or bicycle or truck that I find on the street without permission, just because there are other copies around and none of them are particularly special and none list the owner’s contact details. I just have to pay the owner something later and offer a lame apology, explaining that I was too busy to track them down.

  • Daf

    BBC got slammed for doing something similar not too long ago.

    It may seem a fair price but what they did was basically theft and such a lame excuse is terrible. Telegraph should be ashamed/take action.

  • Thousandwords

    No. That is the sort of stupid false logic that Hollwood uses to justify SOPA and the like.

    A more accurate analogy would be to say you made an exact copy of a car that you saw on the street and used that. Copying is not theft. You are not denying the owner use of their car, and if you later identify them you pay them a licensing fee.

    I think the real question here should be; how hard do the media actually try to identifty the copyright holder of pictures they use?

  • Guest

    I hope he teaches them a lesson

  • Ben Goff

    It’s sad, but it happens at almost every daily newspaper at some time or another. Editors are so concerned with getting stuff on the web ASAP that they often don’t proofread or fact check articles, let alone respect copyrights. 

    I recently had an editor tell me to google search for a photo of a celebrity to use on the web. When it was taking me a few minutes he complained. I said I was having a hard time finding a public domain or royalty-free image. 

    He then replied “If it’s on the internet it’s free, just grab one.” 

    (This attitude is also the reason newspapers are struggling financially, just FYI.)

    People should know better, but they don’t. 

  • Michael Crawford-Hic

    We need to be able insert a code (unique to each photographer) into every image we have taken, this way there will be no question about who owns the copyright.  OH yes this code must be fixed into the file info part of the data and you would be unable to remove it without the encryption key e.g. photographers permission. I do know there is something in the works so to speak at present, so watch this space.  As a lot of the times the data we put in the file info area of the images, is stripped out and then who owns the copyright – we cannot tell. (I believe Google did this a while ago, making all the orphan works we have now)

  • Renato Murakami

    I think the standard stance is this: do publish your photos on the Internet, but with lower resolution. If an issue arrises, you have the original one, with EXIF information, full res and you’ll know where and in what situation it was taken – probably enough for a lawsuit.
    Well, at least I think this is the standard stance, not shure.

  • Anonymous

    It does seem like a cop-out, if they can’t find ownership/provenance, they really should move on to another photo.   It is true that news has somewhat lower standards, “not enough time” is just being lazy.  Especially when the salability of an article depends on having a good photograph, they are trading on someone else’s work without permission.

  • Renato Murakami

    A risk editors are probably willing to take in several newsrooms nowadays.
    Let’s say something just came out, you have to post the news immediately, and you have no images to work with… nothing from archives, nothing public domain or royalty free. And then, there’s Google Images, blogs, etc.I don’t know how things works in UK, specially in The Daily Telegraph… here in Brazil most major news networks are very careful with that, but smaller medias not so much.
    I’ll have to agree – even though it is a bit shameless – at least partially with Fearn’s statement… the speed of news nowadays sometimes won’t allow time for even a quick direct contact asking for permission – let alone a full in deph hunt for the original author.
    So I guess, depending on situation, some journalists are willing to risk copyright infringement (with a backup plan).
    But those are very special cases, and will probably be dealt with the photographer directly. If The Telegraph is willing to take such risks, they better be prepared to deal with consequences too – like they did if there are no lies there. Pay way over what they normally do to assume responsibility.

  • Vornargith

    Typical editorial rhetoric … bottom line, editorial has little respect for design and photography. Their  “news” takes precedence over anything else, and they justify it with their self-importance.

  • Brett

    In the US he could get $150,000 in court, regardless of the “artistic value” or “industry standard rate”.

  • Graham McInnes

    Screengrab from a Twitter conversation with The Times….

  • 9inchnail

    It doesn’t even matter if they compensated him for using the picture, it’s absolutely not ok to just use an image. They propably did not put a lot of effort into trying to contact the photographer. If he hadn’t contacted them, he wouldn’d have seen a dime. What if some adult film industry took a photo of your girlfriend, put that on the cover of a skin flick and then paid you 400 bucks for it? Is that still ok cause they paid you? It’s not always about money, I would want to be able to decide what my pic is used for. I might even give it up for free if it’s used for something I can relate to but I would want to be asked. If you can’t contact me, keep looking for a different image.

  • MahonriM

    The fact that you are a thief does not change just because you put a low value on what you steal.
    Would you justify Grand Theft Auto because you did not find the registration in the glove box?

  • Nicholas Smith

    I’ve been on the receiving end of this, as have a few friends so I can say without doubt that the Telegraph’s policy is the most fair I’ve come across from a British paper. 

    Yes, it’s shitty they do it and don’t seek permission, or chase the creator, but it’s even shittier when they refuse to settle (which happens) unless you threaten court action (which frequently you have to do). 

    Honestly we need a better system, where images are tied to a photographer and non-removable from the metadata (maybe involving steganography), or image libraries engaging with photographers more.

  • Guest

    This is represent a kind of outdated definition of ‘theft’ that is the reason why so many have no problem with pirating music, movies, software… If someone has something that you want and have to pay for to get, taking it without paying that is theft. Illegal downloading doesn’t represent people’s actual willingness to pay for the product, but surely it is still theft!

    And please don’t drag SOPA into to this, whether you consider it OK to steal digital content or not has nothing to do with whether you feel SOPA can be justified.

  • WTL

    You don’t need any of that. You just need some British photographers to sue a publisher or two and to do it well, so that the others are made to respect the law out of fear of the consequences. Everything for them is about money and an aversion to spending it. It’s that simple.

  • Hgwxx-7

    Copying copyrighted material is theft. The clue is in the name.

  • Jofoto Photographer

    Copyright infringement is an economic crime that’s effects all photographers, they enter a domain to access the image that domain belongs to someone

  • Barney

    I had a similar experience with a national newspaper using one of my images without permission. I got a lot more than £400 out of them. It took over six months, a lot of effort, and hard negotiation with the Managing editor, but it was worth it. I have to say though, that when I did finally get through to the Managing Editor, his attitude was great and the only sticking point was the amount of compensation.

  • Roy

    Outdated definition? You can’t arbitrarily extend a definition to suit your needs. Copyright infringement and theft are two entirely separate legal concepts:

  • Guest

    @Roy:twitter  that’s just arguing semantics. Sure in court you do treat the two differently, but wouldn’t you feel that someone stole from you if they used one of your copyrighted pictures without paying you? Whether it is theft or violating a copyright, your loss is financial. In the first case you have payed for the thing, in the latter they should have paid you. Clearly they wanted the picture, so not paying you for it is a financial loss for you.

  • Patrick

    So you can steal a car and if you get caught, you can pay the owner the lowest rate for that car according to the Kelly Blue Book?   and just say, well I did not know it was yours…

  • Roy

    @146ae57f357734f54967f2e8e5d4ce6c:disqus I’ll concede that the difference is semantical to a degree. But a copyright infringement does not imply a financial loss (nor does any other kind of piracy) unless the infringer would have been willing to pay for the commodity if it had not been available for free. It never ceased to irk me how particularly the entertainment industry consistently sidesteps this fundamental issue while suing downloaders for supposedly millions worth of missed revenue.I vehemently oppose to copyright infringement, but there is a difference between it and actually stealing something of value and mixing up the two continuously causes these kinds of debates to derail.

  • Retor

     No, it’s copyright infringement. The clue is in the name.

  • Retor

    But in that analogy, you wouldn’t be stealing a car, you would be making a copy of it.

  • Retor

    I’m not sure I would call it ‘absolutely fair’, but it doesn’t seem that unreasonable under the circumstances.

    And everyone seems to be ignoring the fact that the photographer happily accepted money from the Mail in the same situation. Then when he realised the Telegraph had used the picture as well he decided he could demand a much higher fee. Sounds more like greed than principle to me.

  • Guest

    hey! we found it from a blog, so it’s ok! if he didn’t threaten legal action they wouldn’t have bothered with any compensation. not that I support litigious people, but I’d be a little pissed if my images were published wholly uncredited.

  • Fluff

    As I understand it there are no statutory or punitive damages in the UK for breach of copyright, at least as far as photography is concerned.

    The papers and other infringers know most people will be fobbed off with a small fee or an apology if they get caught so it is worth the risk for them. As long as that is true they will continue to do it.

  • Adam

    “Our industry .. adopts the stance that if a picture … is already being published online  … then no reasonable
    copyright owner will object to its being republished in exchange for a
    reasonable licence fee.”

    You guys are seeing this from the completely wrong angle. This is GREAT news. The Telegraph is saying that the web is a kind of royalty-on-demand public domain. Basically, if it’s online you can use it, because no one puts something online without expecting it be used. And, you don’t have to report that you’ve used it either – the onus is on the copyright owner to find your use, and then request a licensing fee from you, and then you are required to pay something that you deem reasonable. Like £400.

  • Marja

    So did (I believe) the LA Times.  Peter Vesterbacka’s (of Angry Birds fame) wife as she attended the President’s independence Day Ball in Finland in December.  It made international news sites because her dress was designed to look like the game’s red bird.  The photo showed up all over news websites, and many of them didn’t pay the photographer for its use.

  • maxfridbe

    If I’m here to make money off a photo I have on my blog and someone uses that photo without notifying me that they did that.  Catching them in the act is an enraging thing to happen in the first place.  Based on the snippets of conversations posted in response to being caught: I would be infuriated at the unapologetic “it’s our policy, we’re going to keep doing it” tone.  And yea take em to court to teach them a lesson.  If they had responded with, we’re so sorry, we don’t know how this happened, the person responsible has been reprimanded, let us come to some financial arrangement based on the transgression.  THAT would be closer to taking RESPONSIBILITY and not some kind of U MAD BRO?

  • Eh?

    Hmm, You’ve not heard of exclusive deals? By allowing a single user exclusivity you can claim a higher rate. By them using it elsewhere means you can’t then offer anyone else exclusivity which lowers the value of it.
    Lowering the value of something is theft.