PetaPixel

“When I Borrow Someone’s Car for a Couple of Hours I Slip Them Fifty Quid”

Last week we reported on a dispute between photographer Jonathan Kent and The Telegraph over the newspaper’s “use first and ask/pay later” policy. After contacting the paper over an image of his that was used without permission, Kent received a response from picture editor Matthew Fearn, who informed him stating that their policy is standard and due to the “ever-shifting nature of news”. In response, Kent wrote up a tongue-in-cheek letter likening the paper’s actions to borrowing a car for a joyride and paying for the use afterward.

Here’s the original letter sent from Fearn to Kent:

Dear Mr Kent

Thank you for your 8 February email, which has been passed to me.

You will appreciate that ours is a fast-moving industry and the ever-shifting nature of news – in particular with the advent of online publishing – is such that 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.

Clearly it is open to the copyright owner to adopt the position that we have “violated” their copyright. The legal position in cases of breach of copyright is generally that the publisher is required to pay double the industry rate to take account of any ‘flagrancy’ of the breach. Inevitably the outcome is that publishers tend not to use pictures from such copyright owners in future.

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.

The rate for online-only use of a picture such as this is £25. For using it twice (as we have now done) we would normally pay £50. Were you to adopt a legal route and succeed in proving ‘flagrancy’ (which we deny) we believe you would be awarded £100 in damages in total.

We readily appreciate that the commercial rates available for online picture licences are depressingly low. We have no wish to make life difficult for photographers – our business depends heavily on them – which is why you were immediately offered £200 for a single use of your picture. This was eight times the industry rate. Since we have now used it a second time (albeit only very briefly) we are prepared to increase this offer to £400 in full and final settlement. We note that you are taking legal advice and it therefore seems reasonable to keep this offer open for a period of 24 hours.

We hope this is of some assistance.

Matthew Fearn

Picture Editor

…and here’s Kent’s response to Fearn:

Dear Matthew

About your motor. I was passed an email by a colleague and you make your position quite clear. You’re quite obviously upset that I borrowed it yesterday afternoon without asking you.

Now, and I don’t want to be patronising here, we live in a changing world. I move in fast circles. I have places to be, bars to visit, restaurants to enjoy and an unbelievable number of glamorous women to impress.

So there I was yesterday afternoon when I got a call from the hottest girl I know. She wanted me to take her to The Fat Duck and when needs must the devil drives – well actually I drive, but I couldn’t lay my hands on an appropriate vehicle.

Then blow me if I didn’t spot your Aston. Now call me stupid but there it was, parked on the street, in full view of the public. I would have liked to have asked you but, and I’m putting this down to the fact that you don’t know how people like I work, you failed to leave a piece of paper under the wipers with your name, address and number on so I could check first that it was OK for me and Shazelle to take a spin in it.

So, and I accept this, I just opened the door (I’ve got a pick that does most Astons, so no damage), hotwired it and drove down to Bray.

You’ll be pleased to know it wasn’t a wasted trip. Heston is on cracking form, and so is Shaz for that matter. I took some tissues with me so you shouldn’t notice any staining on the leather, not that there’s much room in the back seat of a DB7.

I notice that you use the word ‘stole’. It’s an ugly word ‘stealing’. I’d suggest that all I was doing was making appropriate use of the car. After all it’s designed to be driven and that’s all I did.

But it’s a fair cop. I didn’t ask. So here’s what I’ll do. Normally when I borrow someone’s car for a couple of hours I slip them fifty quid. I know it’s not a lot but what with the number of city boys what can afford Astons these days they’re two-a-penny and it’s easy to find one who never gets out of Canary Wharf and could use a little cash to buy a bit of Charlie to make lunchtime pass faster.

So in view of the misunderstanding I’ll make it a hundred. Mind you, the rule of thumb is that if someone kicks up and demands extra wonga I don’t rent their car again, so you’re doing yourself out of the opportunity to earn the odd fifty quid in future.

Now what with you having roped in yer lawyer and all, perhaps I can go to £200, but there’ll be bad blood between us. Shazelle thinks you’re a bit out of order too. But the offer’s there. I’ll give you 24 hours or I’ll blow it all down Annabel’s.

Cheers

Jonathan

P.S. Sorry about the scratches. I reckon it’ll buff up a treat with a dab of T-Cut so no harm done eh?

What’s your opinion on this dispute and the newspaper’s policies?


Image credit: Aston Martin DB7 Zagato by Ed Callow [ torquespeak ]


 
 
  • Anonymous

    Thank you for the link you posted on copyright. I find it important to protect ourselves as well. It’s our livelihood. I even give credit whenever I use photographers images as placeholders to preview designs. 

    On the other side of things, how can I know for sure if an image is safe to use? There are ones you can use and others you cannot. Most images are images of images and don’t hold the original information that can tell me who made it. I can try to reverse google image search and find a creator, but that is the extent of my knowledge.

    We can’t forget that depending where we put our work will either help or negate our copyright to them. I remember hearing that anything posted to facebook became facebook property and they can take your photos and do anything with them? I think this was recently changed though? Don’t take my word for it, but I think that is was true once upon a time.

  • Anonymous

    It doesn’t seem like every designer wins over what gets used fairly. There are images you can use and images you can’t. How you find out might be easy as right click and looking at the photo details or as hard as needing to make a email and pay the man before it can be published. This can take minutes to days. Big companies take advantage because it is easy to get away with. Just like pirating media.

    There has been a leap in the number of blog posts pertaining to rights and infringement since SOPA. I almost smell a conspiracy….Like all of this shifting in people opinions will eventually lead to the downfall of the free internet. Instead of hitting the big picture they’re targeting small vulnerable nodes of creative professions so the world starts turning towards a SOPA law. I’m getting scared Max. Hold me….

  • http://www.manwithacamera.com.au/ Melbourne Photographer

    Well done Jonathon – great response. It’s funny AND makes the point clearly. 

  • http://www.bobcooleyphoto.com bob cooley

     Smyski,

    There are really only 3 classification of images:

    1) Images that are protected under copyright, which is the VAST majority of images. Even copies (or images of images) are still protected as the original author a owner and copyright holder.   You MUST get permission prior to using these images (by law).

    2) Creative Commons: Images where the creator of that image willingly allows an image for free use, but under the conditions of the Creative Commons set by the creator. This isn’t a relinquishment of copyright so much as it is an “open license” to use under the conditions set by the creator.  Note: unless you can find where the creator of the image clearly states that the image is being released under Creative Commons, it is likely NOT creative commons and under full copyright.  (See Flickr, many photographers use Creative Commons there).  In these cases you can use the images only under the conditions stated in the CC license.

    3) Public Domain: Images over 120 years old are generally safe, and there are resources out there where people have given up their copyright and deemed there photos public domain.  There is a list of these types of resources here: http://en.wikipedia.org/wiki/Wikipedia:Public_domain_image_resources 

    But generally, these images are of low quality, or very old.

    You never negate your copyright by posting an image somewhere.  In cases such as the Facebook clause you mention (which is used on MANY image sites), this is merely a protection for the site to post and re-post your images throughout their servers and network; it gives them blanket protection for use of the images (so they can display it for you), but it does not allow them to use it for commercial advertising, etc. Nor does it take away your ownership or copyright.  These indemnifications used by websites are legalese overkill to protect the companies from frivolous lawsuits.  There have been some limited abuses, but generally its not an issue, and you NEVER lose your rights to the images. 

    Hope that’s helpful.

  • Julian Snodgrass

    All copyright discussions, articles and teachings propound the tenet “unless you own a license, authorization, or knowledge of expiration, you must assume copyright and search for said license or authorization prior to use.”

    It seems this tenet is being ignored, probably for myriad reasons.

    Also, in regards to copyright legal settlements, remedies are always on a case by case basis, there is almost no “general” award.  Regardless, remedies gnerally include monetary payments (never a multiple of an offenders “usual” rate), damages and frequently seizure and destruction of offending materials.

    If the Telelgraph did write the first communication they clearly do not understand intellectual property.

  • http://twitter.com/Jolph Jonathan Kent

     I like that.  A welcome reminder that there are honest, decent people who do the right thing. Thanks David

  • http://twitter.com/TimGander Tim Gander

    I’m about to invoice The Telegraph for a photo they haven’t used yet. I work on the basis of ‘invoice first, and if they spot they haven’t had a photo I’ll send them one of my cat’. Seems fair enough in this fast-paced world.

  • Haveado

    You have just admitted to breaking the law.

  • Haveado

    ‘respectable gentlemen’… One ‘gentleman’ has committed theft, the other has done nothing wrong at all, completely innocent of anything. How is a thief a gentleman? Please learn the law!!

  • Haveado

    Well said.

  • Anonymous

    I also break speed limits.

  • Anonymous

    Both men respectively understand the law. And both write and fight another very well. I guess you can say I have a bit of a crush for both of them. But even then, I wouldn’t justify insulting them.

    Most people argue only a single side, but if I learn from both perspectives, I will be capable of doing more than that of a one sided mind.

  • Anonymous

    What organization would actually admit – and in writing – to breaking copyright law
     
    The same one that doesn’t claim that the letter was a fake, but instead retorts to a post on BJP as well as other places on the internet trying to justify their actions?

    Pull your head out of your Arse Perry, and read up before stupidly claiming conspiracies in comments. That’s what a blogger does right? I guess not, just fire off comments without thinking about what you are saying, nor researching any of your claims.

    Sounds like you could easily qualify for a job at The Telegraph. All you are lacking is experience in are the “Low Blows” and “Extortion” departments.

  • http://ann-parry.com/ Ann Parry

    You didn’t realize I was being sarcastic?
    Sorry for the confusion. All the best – Ann

  • alex

    The photographer is a nutter.The paper offer him a reasonable amount.It is amazing how many people think they can sue for loads of money if there photo is used without their permission.Take the money and thank yourself lucky.

  • Billy McBoinger

    I love how they admit that their policy is just to take without asking and then worry about ownership afterwards, but then they deny flagrancy.

  • http://twitter.com/Jolph Jonathan Kent

     I think you’re a little hazy on law and even on settlement levels.  As even the Telegraph was fairly quick to concede there is a question of flagrancy – there needs be a punitive element to deter them from taking an image without demonstrating any intent to pay for it.  Had they indicated that they would pay when they took it the settlement would be lower.

    This is now a point of principle.  I’m going to make absolutely NADA from this.  Any monies are going to a local school.  But I’m damned sure that I want the settlement to act as a deterrent to flagrant abuse of copyright.

    And Alex, I’m not a nutter thanks, just bloody minded about issues of right and wrong.

  • http://www.facebook.com/profile.php?id=100000972947545 Paul Seligman

    WalesOnline, a local brand (ultimately) of Trinity Mirror group, started a Flickr group for Images of Wales. I was happy to contribute some of my (amateur) photos to the pool, as the T&C stated they would always contact you first if they wanted to use one of your images in their publications or web sites.

    Then they decided to create a new group to replace this one – purpose appeared much the same, but the new T&C said they had the right to publish any image wherever they liked without prior notice or agreement. I challenged this, but they confirmed that I had understood correctly.

    Naturally, I declined to participate. But others did join and submitted photos. I guess some amateurs, if they had read or understood the group rules, would just be happy to have one of their images used.

    But this in turn undermines profesional photographers or those, like myself, who only want non-commercial organisations to use my photos without payment, and then only with accreditation. I have an appropriate Creative Commons licence on my public flickr photos and any Flickr group to which they are submitted should respect the original CC terms, not claim they can override them by ‘group rules’.

  • Brad Salsbury

    Like I tell the kids – don’t get mad, get even!!