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 ]


 
Get the hottest photo stories delivered to your inbox.
Get a daily digest of the latest headlines:
  • http://www.facebook.com/profile.php?id=5801173 Jeffrey Remick

    Perfectly appropriate response. Well done.

  • http://twitter.com/byazrov vladimir byazrov

    lol I guess both are wrong
    as in the end we, photographers, and publishers are all depend on each other.
    world peace.

  • Anonymous

    Bwahahahahaha. Right on Johnathan! Think I have a bit of a man-crush on how this gentleman handled the Telegraph’s blatant disregard for copyright and their infringement. Not to mention the blackmail tactics that liken them more to the mafia than a trustworthy news source…. 

  • http://www.facebook.com/profile.php?id=1102933143 Wang Xu

    Hahaha! Brilliant :D

  • http://www.facebook.com/RachelFoxPhotography Rachel Fox

    Brilliant!  Just because a newspaper has a policy does not mean that every Joe Soap knows it, or indeed that their policy is lawful or correct. 

  • http://www.facebook.com/profile.php?id=5801173 Jeffrey Remick

    Yea, I love how their “policy” supersedes the law. Makes complete sense.

  • Daver

    Jonathan comes off as a bit of twat.  

  • http://twitter.com/bretedgephoto Bret Edge

    Regardless of how you feel about Jonathan’s response (I found it funny) the point is well taken.  For the newspaper to use his photo without his consent, and then offer to pay for it after the fact and in accordance with their “policy”, is preposterous.  They’re only offering to pay because they got caught.  How many photos do they steal without properly compensating the photographer?  It’s a shame they choose to operate their business in such an unethical manner.  Props to Jonathan for calling them on it.

  • http://www.betriebswirtblog.de/ Mario Liedtke

    Ok. I agree to Jonathan. Of course the newspaper is acting like an asshole (sorry, I am german, I don’t know so much words that I can use at this point).

    Espacially: Even if they pay double as penalty for using without asking… If you consider that >50% of Pictures probably can be used without paying ever for it – as the copyright-owner “is not researchable”, it’s a good deal for the newspaper to STEAL the pictures! Because at the end they pay less, if they steal…
    .
    In my opinion a contract can only be done, if two come to one solution/contract, that both are willing to sign. That means:
    The photographer can set the price, and the newspaper can say YES or NO.
    Also the photographer can say: “Hey, I just don’t like the way you smell, I DON’T make a deal with you, I dislike you completly and I give my pictures only and exclusivly to another newspaper.”
    For that reasons I called the newspaper asshole above…
    .
    On the other side:
    The story with the car is funny, but it’s not fitting.
    The photo just was copied. It wasn’t hurt, it wasn’t away, and Jonathan could have a look at it all the time. The car on the other side, was physically not ready to use for the newspaper boy who owned it. IF he would have used a ride emergently, he couldn’t do. (Of course I know, the car story is just fiction).
    .
    So a lawyer could say: “The stolen car is more worse than the stolen picture, because the owner couldn’t use it with full rights and the value was decreased by adding miles with it.”
    But on the other hand: If the photographer would like to sell his picture exclusivly , or just even wanted to keep the right to decide himself about price and buyer, he was raped in his freedom and maybe also fraud about the the ability to sell the pic exclusivly for i.e. 2000 bucks than to give a share use for 50-200 bucks.
    .
    My conclusion is: The practice from newspapers to steal pictures should be penaltied much harder than by double the price. The research to find out where stolen pictures are used, is much more expensive, than 2x the price. So photographers are raped once by newspaper, second by law. 

  • Todd Klassy

    Perfect response. The only thing that could have made the letter any better would have been court papers.

  • Ilikekittens

    Theft is theft, if you want to use an image in your commercial enterprise you need to figure out who owns it and pay them.  Suggesting you are paying four times an ‘industry rate’ when you are a major newspaper is not really true.  You are a major player what you pay sets the standard for the rest of the industry.  Stand like a man, research your photos and stories properly and pay for them…or do you not require your stories to be fact checked because after all it is a fast moving business.

  • http://www.facebook.com/people/Kathleen-Grace/1504717315 Kathleen Grace

    Brilliant response

  • Lolo

    What this inspired me is that there must be a law enforcing press or any other media to use only content that is actually propoed to them. Not for free unless it is specified. There are plenty of content proposed by many publishers. Of course one can say that in a changing world like today, why should we keep the old fashioned way of working? Maybe just because all of those media are not giving away what they do. If they don’t pay for the content they use to produce, why should we pay for the content they deliver? And don’t talk about added value please. As if the picture that is part of an article has no value compared to the text. Let’s stay serious for a while please.

  • http://twitter.com/AcresWildPhotos Marek Styczen

    Well done Jonathan – I too found his response quite funny, the treatment he got from the paper was shockingly bad though. Fundamentally, where photographers and publishers *should* be working together as someone above suggests, this is effectively a bully caught out – period. Sad.

  • Anonymous

    These guys are smart about their shit, and I don’t know whos side to take personally. As I violate copyright all the time and would otherwise change my tone if it were the other way around. It would seem that this time the publishers are as much a victim as the photographer, being that the source of the photo really has no indication of copyright and could happen to anyone. The only difference between them now is who is going to be more of an ass about it. I just hope that they can settle in the end as two respectable gentleman.

  • Jamez

    Wonder if the image had any copyright EXIF data?

  • http://twitter.com/MaximillianHill Maximillian

    The problem is that the newspaper thinks that “no reasonable copyright owner will object” which is just stupid.

    We should all be “unreasonable” and demand to be compensated for our work. Case closed.

  • http://twitter.com/MaximillianHill Maximillian

    Someone had to find the photo in order to use it. Why didn’t the issue of credit/copyright come up right then? It’s not like the photo magically appeared in the articles.

  • Jenphotographs

    Telegraph has gotten in trouble for “borrowing” images and written materials before. I’m sure they take this aggressive stance of “shoot first, ask later” because it works for them; many photographers and writers let it slide because they don’t have the resources to fight it.

    While the analogy that Kent used was heavy-handed, it got the point across. Kudos to him for standing up for himself and in a roundabout way, other photographers and writers. If more of us did that, maybe newspapers and magazines would change their MO.

  • KGB

    “photographers, and publishers are all depend on each other”.
    Then why do the publishers make the “rules”?

  • mike

    I love the irony of the fact that Jonathan still doesn’t have any contact details on his site and there is no copyright listed on his website (or photos) - are the images even his???

    All photos should have a have a copyright symbol on them or a signature to show the owner; especially if they are going onto the net. It makes no change to the photo to have a water mark on them, however it means that anyone using the image either gets a legit copy from you, or breeches copyright, there is no arguments any more.

    I’m not saying that the newspaper is right, however photographers need to be take ownership and show copyright and how to contact for usage if they are going to be serious about enforcing copyright.

    Take ownership of the issue instead of bitching about it afterwards. Prevention is cheaper than the cure. 

  • Ksuwildkat

    Excellent response.  I hope he sues the crap out of them.

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

    “…the publishers are as much a victim as the photographer, being that the
    source of the photo really has no indication of copyright”   ??? 

    I repeat ???

    An image is protected by copyright the moment it is created. No indication is needed.   You want to be a designer, you best learn your copyright; both so you don’t end up in court on the wrong end of a copyright suit, or for when UrbanOutfitters, or another unscrupulous company rips off one of your designs and doesn’t pay you for the 50,000 T-shirts they make of the design.  it happens.

  • Just Visiting

    Really? So what is the purpose of this symbol “©”?

    I didn’t say The Telegraph was right, especially about the pay-later policy, but technically there’s nothing wrong with using a public image that has no copyright indication.

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

    The Circle C “©” is an indicator of copyright, but it does not need to be on a work for that image, drawing, etc. to be under protection of copyright.   It absolutely IS wrong, AND illegal to use an image without permission.  Images (and other works of art or creation) are not ‘public’, unless they have fallen out of the term of the copyright (which is typically 70 years after the death of the creator).

    Please do yourself a favor and learn about the copyright laws. Its essential if you want to become a creative professional.

    http://www.copyright.gov/title17/

  • Demo

    All your points regarding marking images to ensure copyright are invalidated by the ACTUAL UK legislation covering copyright. Please make an effort to understand the topic you are discussing before spouting off.

    Further, aside from not being necessary, many artists prefer not to have anything marking their work as it is distracting. Since, under law, it is not required many choose not to.

  • Mc7

    There is not a single photo anywhere on the Internet that doesn’t have a current copyright. Even ancient photos are derivative works because they have been rephotographed with a flatbed camera. Plus any image created by a modern digital camera will have a copyright that’s not yet expired because this technology hasn’t been around long enough for that to happen. They can not claim that they don’t know if there is a copyright for the image. We know that there is.

    The fact that the paper has made an offer that includes some form of a penalty is good and at this point he’s probably pretty close to what he can expect to come away with after legal fees. Maybe they should double it one more time. Regardless, this should make it clear to them that their policy needs to be changed. Maybe try should only run stock photos, or maybe they should hire photographers to shoot stock photos for them. I think that terms of this settlement should include an agreement that if this happens again, they will pay an even higher rate, maybe even the statutory damage rate. If they don’t want that to happen, they should send him an email with a link to ever photo they are considering running that they don’t have a license agreement for. If they same thing were to happen again with one of his photos, it would be totally inexcuseable.

  • 9inchnail

     They won’t change anything unless other photographers find their work misused by them and join the lawsuit. Just one law suit is nothing to them. It’s still cheaper to lose and pay a fine than buying every single photo you use. And it’s not that easy for them, they can’t buy stock photos if they are publishing an article about current events. You can’t have your own photographers everywhere either. So if something happens, you don’t have any photos of it, you just steal some. You can’t wait for the photographer to accept your offer, that article has to be printed NOW. No one’s going to read it a day later cause they’ve already read it somewhere else. I do understand the publisher, it is a problem but it is their problem not ours.

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

    Interesting to see how many people think it was my fault for not putting a phone number on my blog.  So – a number of observations:

    Firstly there were means of contacting me via the blog: people have posted messages asking for me to get in touch – and there is my Twitter address – a good way of at least trying for an instant response.  The blog gives my name, the fact that I’m a journalist and mentions I’m making a programme for the BBC.  I’ve even written in the past for the Telegraph.  As a journalist I could have got a long way tracking someone down on that basis.  The Daily Telegraph didn’t try.

    Secondly if they’d taken the picture in good faith they could very easily have left a message linking to the story where they’d used it and asking me to get in touch to settle on a fee – post facto.  That way even if they’d been in a hurry they could have proved they weren’t taking it flagrantly.  They didn’t.  There was no indication they wanted me to find out they’d borrowed the image so they could pay a proper usage fee.

    Thirdly the fact it was my image was pretty obvious from the context.  None of the three papers that stole the image have disputed my ownership.  Two are simply arguing the toss over how much money they pay for having taken it without permission and for having failed to alert me to that fact so they could pay retroactively.

    Lastly those who think the paper is being reasonable presumably won’t think that big corporations are reasonable when they try to take people to the cleaners in court who use their content without asking even if, unlike themselves, they’re not making money from it.  There’s a real issue of double standards here.

  • Wrecklesseric47

    does ‘CHARLIE’  still mean ‘Cocaine’?

  • Jonsparks

    And equally, many of us do choose to do so. All images on my website, blog, Facebook page now carry a watermark. I try to make it subtle enough not to mar the images too much but I do want people to know it’s there.
    But you’re quite right to make the clear distinction between choosing to mark images as © and the fact that images are automatically copyright whether marked or not. This is something that everyone who uses images really ought to know.
    Jonathan’s response is really pointing out that what the Telegraph did is not just ‘a bit naughty’ but illegal.

  • Jonsparks

    And equally, many of us do choose to do so. All images on my website, blog, Facebook page now carry a watermark. I try to make it subtle enough not to mar the images too much but I do want people to know it’s there.
    But you’re quite right to make the clear distinction between choosing to mark images as © and the fact that images are automatically copyright whether marked or not. This is something that everyone who uses images really ought to know.
    Jonathan’s response is really pointing out that what the Telegraph did is not just ‘a bit naughty’ but illegal.

  • http://twitter.com/stokesga Gavin Stokes

    Anyone who thinks that its ok for a company to use other peoples work based on what they decide has and has not artistic merit has just forfeited all their work for anyone to use. By that standard they just state we did not feel it had artistic merit for any work they wish to use. Proving something is yours and you hold the copyright to it, is a lot easier than proving it has artistic merit….wake up people and look at the bigger picture. 

    Just reading through some of the comments its astounding how view people understand copyright…look it up folks, you’ll learn something.

  • http://twitter.com/stokesga Gavin Stokes

    Under current copyright law you already have copyright after taking the picture.

  • Jon

    Copyright is copyright, and the photographer has the right to enforce it.  The paper shouldn’t have a policy that is so clearly meant to put a better spin on theft.  I don’t care if the news industry is a fast moving one or not, they shouldn’t just appropriate others work for their uses (unless there is a contract in place).  Because this really brings up the second issue of “Do they only pay if they get caught?”.  Sure, if they have clear copyright info, they might send out a check… but do they always?  So, if that photographer doesn’t see their image, will they actually be compensated.  

    Newspapers/magazines today need to find a way of generating in-house stocks of photographs that are linked to local (or international) photographers.  As a photographer you put images into their stock for “free” (or possibly a low fee), and all your information is clearly linked to that photograph.  Both parties know how much an image costs to use prior to submission, and if a paper uses it, they send a payment immediately.  If a story is “breaking”, photographers can post it immediately, and the paper can use it if they feel it is appropriate.  I do think “re-licensing” fees should also be clear in any contract, that sets a fair rate that other papers have to pay to reuse in-house images.  Ultimately, this reduces the paper’s need to use possibly unlicensed images from other sources on the web, which reduces their legal liability, and possibly gives photographers an easier way of sharing images that newspapers might want to use.  (I would like to make it clear that the in-house image store would be completely in-house, and if an image is published online (in any public capacity), that would constitute use, and the photographer would be compensated).

  • http://jbhildebrand.com Jesse Hildebrand

    What if the photographer was in the process of selling that image to another paper or website that DID require commercial exclusivity?  

    The whole media world has gone insane, they’re trying to get all the advantages out of digital photography and social media without any of the drawbacks… like… paying.  On one hand they’re firing and laying off in house photographers by the hundreds, because  widespread digital photography and amateur photographers have made them obsolete, then turn around and say “Well, you’re obviously not a professional because you don’t work for a news outlet, blogs don’t count sorry, so we’re just going to take your photo, and if you’re lucky, pay you a tiny percent of what it used to cost us to get photos, but don’t worry, we’ll tell you you’re getting double.”

  • Gmac

    I wouldn’t compare having one’s photograph used without consent the same as being raped. This continual use of the word rape when getting ripped off is a complete insult to all those who’ve really been raped.

  • http://twitter.com/MRHYPERPCS Robert Greenawalt

    Anyone who would take the time to read this and then choose a stance that somehow you failed to do something to protect your work isn’t really worth replying to. 

  • John

    Excellent comment Jesse!  What is to be done though? Get into the business of selling camera’s, or training novices? More money there than taking photos these days…

  • http://twitter.com/stokesga Gavin Stokes

    Take the f**kers to court.

  • Anonymous

     Nice to see you chime in on the conversation about you!

    It’s impossible not to be able to get ahold of anyone in this day and age of social media sprawl. The truth is, they devote 2 minutes to googling your name, and they would have found your info on The Guardian. If they had bothered to check your twitter, they would have gotten an “instant response.”

    It’s really not hard to find and get in touch with strangers these days. Having worked for them before, you would really think that they would at least try and treat you right. But, as I stated earlier, they are more mafioso than magazine from the tone of their blackmail/blacklist threats.

    Best of luck to you in this Johnathan, I hope you get to ream The Telegraph over their flagrantly bad moral policies.

  • Anonymous

     Why do you think I work in a camera shop, rather than forage on my own in this nasty world? :)

  • conor

    can the NUJ take such a case?

  • david A

    rape1    [reyp]  Show IPA noun, verb, raped, rap·ing.
    noun1.the unlawful compelling of a person through physicalforce or duress to have sexual intercourse.2.any act of sexual intercourse that is forced upon a person.3.statutory rape.4.an act of plunder, violent seizure, or abuse; despoliation;violation: the rape of the countryside.

  • david a

    I lost my wallet in a park a few months ago, when I returned home I already had a message from the person who found it on my website, twitter, and facebook. All he had to do was just google my name.

  • Name not on it? It’s mine..

     @smylski:disqus
    WHY DOES JOHNATHAN have to be RESPECTABLE??? 

    He has all the right (copyright if you will) in the world to act as a total doucher if he wants simply because of the unapologetic ‘tone’ and flavor of that insulting letter he got.

    Fooking douchebag corporations…. and their fast moving environment, are you shitting me?

    PLEASE.

    Get a fucking life.

    All you have to do is right click on a foto in firefox if you have the exif data add-on, and it shows you where the picture originated and all kinds of cool info. There’s also a cool tool bar add on that is ‘who stole my picture’, again right click on the foto and it looks for your picture on a plethora of sites. 

    THEY KNEW EXACTLY what they were doing… imagine how many other picts they havent paid for, are you SERIOUS?

  • Ann Parry

    Isn’t Jonathan Kent’s alleged letter from The Telegraph actually a Monty Python type of satire that he created himself?

    What organization would actually admit – and in writing – to breaking copyright law, as it does in these paragraphs:

    “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.”

  • Ian

    Market rates may well drive prices down but the fact remains that if as the owner of an image you feel its worth four times market rate and want to hold out for that it should be that you can, it is only a buyers market where two sides consent to negotiate prior to use, to a lower price. It is not for one side to use then dictate terms, I have used jonathans scenario in the past. I say on my web site that unauthorised use  will result in a fee equal to four times day rate per image per use, I have therefore set out my trading terms and that is the price I will seek, nothing to debate. Our industry is no different to others, some restaurants charge £20 for a burger, mcd’s a couple of quid, its a the buyers choice where to go and what to pay. perhaps we need to get more savvy about advertising usage rates so that there is no argument later.

  • Jaynerussell

    Absolutely fabulous response to a poorly thought out rebuff. I just love the balls he’s shown.
    TOP.

  • Anonymous

    Respectable is not losing your shit like you just did. “Keep calm and carry on.”  
    I don’t like taking sides in these complex matters that need level headed attention. I had to complement them both on their cleverness though. Thanks for the tips. I found that information very useful. All I know about are the copyright info you might find in the details of a .jpeg