Use First, Ask Later: Don’t Want to “Play Hardball”? Don’t Publish Online


The issue of publishing social media photos of breaking news without their owners’ permission is in the news again. After a helicopter crashed in central London last Wednesday, the London Evening Standard found a photo snapped by a witness named Craig Jenner and shared on Twitter. Unable to obtain permission from Jenner prior to its paper going to the press, the Evening Standard went ahead and published the image on its front page.

Other news organizations quickly pointed out that the use was likely a clear cut case of copyright infringement.

The case is strikingly similar to the court ruling issued last week in the battle between photojournalist Daniel Morel and a number of news organizations. In that dispute, a judge has ruled that Twitter’s terms do not give news agencies the right to publish Twitter photos without permission.

That ruling didn’t keep the Evening Standard from grabbing Jenner’s photo. The Guardian writes that the Evening Standard has a “use first, ask later” policy for when copyright is difficult or impossible to obtain in time.

An Evening Standard picture desk executive said that in the heat of the moment, the paper could not contact Jenner about its splash, but if he, or anyone else, contacts them regarding payment, they will oblige.

“All the information about the source of the photo is entered into the database and remains in our library. We’ve always been of the view whoever took the photo owns the copyright, and if they want payment, there is no question they will be paid,” said the Evening Standard source.


The London Evening Standard found and used a photo that Craig Jenner had shared through his Twitter account

Intellectual property expert Charles Swan of Swan Turton writes that the way copyright law works means this type of infringement is bound to occur:

The difficulty with this is that eye witness photos will often be “heat of the moment” material. If a newspaper doesn’t get permission before publication it will almost always infringe copyright – being willing to negotiate a fee after the event isn’t a defence to a legal claim.

In most cases the media will get away with this. Perhaps the tweeter isn’t interested in being paid, or the sums involved are too small to make legal action likely. But a policy of publish now, negotiate later cannot be defended from a legal point of view. Copyright isn’t just a right to be paid, it’s a right to authorise publication.

His advice for photographers who don’t want their work used without their permission: unless you’re willing to “play hardball,” don’t freely share the images online:

The lesson for professional photographers is clear. Don’t rely on the Morel decision. If you tweet photographs you risk them being published without your permission, and if the photograph is a valuable newsworthy image you will lose out if this happens because your negotiating position will be undermined. Unless that is, like Morel, you are prepared to play hardball.

Basically, the economics don’t work in a photographer’s favor. If the most likely outcome of publishing a photog’s work without permission is having to pay a reasonable amount, the benefits of publishing the images without permission far outweigh the (potential) costs for news organizations.

(via BJP)

  • Ryan Jensen

    “We’ve always been of the view whoever took the photo owns the copyright, and if they want payment, there is no question they will be paid,”

    Ah, so $100,000,000 it is then.

  • G

    If they’re that desperate to print it (willing to break the law), they should have to pay through their noses. Don’t see why the copyright holder should accept a minimal standard fee.

  • nab111

    A great opportunity to ask for LOTS AND LOTS OF MONEY!!!

  • Attila Volgyi

    This “don’t publish your pic if you don’t want it to get stolen” argument is way too often used by the infringers around. The less polite guys who don’t claim willing to pay for the used photos but who claim everything on the Internet is for free – what is actually the same what Evening Standard wants to achieve just looking much nicer guys.

  • Libby Stack

    I’ll just restate the comment I left at BJP earlier today

    “All the more reason to splash a big fat copyright notice or email
    address right over any photo that could be construed as newsworthy. That
    way, no excuses. If an agency If a news agency tries to ‘shop it out
    for publication, that’s a very deliberate action. If they say “could not
    contact” well that is a load of rubbish. A lot of people who take and
    immediately upload stuff like this live on their devices. And if it
    comes from Instagram. Twitter – there are comment fields on IG and
    Direct message on Twitter. To say “we could not contact” holds no water.”

  • Adam Gasson

    I agree, it’s the same as a car thief saying “well if you don’t want your car stolen don’t buy a car” – it’s ridiculous that there’s no educational process to teach people about copyright or rights of creators on the internet.

  • Adam Gasson

    I don’t think you’d have to, you just invoice for the amount you want and if the newspaper doesn’t pay up you get a solicitor to handle it. There are clear guideline amounts set by the National Union of Journalists for usage payments and, as far as I can remember, the markup for copyright infringement is between 3-500%
    I completely agree thought that we shouldn’t be in a situation where a newspaper can take images without permission and then decide how much they want to pay. Breaching copyright is an invite to dance with the devil, they know the risks.

  • Adam Gasson

    I think they should be more accurate in their words as I’m assuming they’ve attempted to contact Jenner but didn’t get a response. It’s not an excuse for breaching copyright but the way they’ve written it makes it sound like they haven’t even tried to speak to him.

  • chloe fish

    as Adam implied I’m shocked that you able to earn $7328 in one month on the internet. did you look at this page Great70 dOTcom

  • G

    I hope you’re right, I still fear that they just gamble that most amateurs wont go into a legal battle… either because they can’t afford it or because they’re intimidated by it.

  • Keiran Blackwell

    So, what if the paper is one with which I highly disagree on pretty much every editorial and often “news” stories that they run? (ie, Daily Mail, Star, Herald, etc) Where I’d potentially deny them permission to use my photo. Where does that leave me?

  • Mansgame

    Mixed feelings here…If someone would publish one of my time sensitive pictures because they tried to contact me and couldn’t find me, but pay me what they would normally pay for a front cover photo, then I’d be ok with it. If they pay less than what I think it’s worth then there might be some issues.

  • Helena Martins

    Guys … this is so wrong: “His advice for photographers who don’t want their work used without their permission: unless you’re willing to “play hardball,” don’t freely share the images online”
    It’s so close to the “Don’t teach your girls how to dress, teach your boys not to rape”
    I would like to imagine, that if I share a photo on a social network, that my rights to that image are respected. Social networks don’t depreciate the value of my image, if in itself is held of worth.
    For a while now, that those seeking for images online, know that just because it is on the internet, doesn’t mean that it’s ours to take. Now, the same principle applies to social networks.

  • Samuel

    No one is addressing the fact that it is often the case that the photogs don’t want payment for their photos, if you click through to the guardian you’ll see a quote from a guy who recorded about 5 seconds of video on the ground that was shown on every single rolling news channel in the uk for a good hour and a half pretty much solidly that read

    “Amazing how many people are encouraging me to make money from a few incidental photos of a horrible fatal accident. Just credit me!,”

    It seems this doesn’t need to be a litigious matter more an ethical one, if you solely wanted to profit from a newsworthy photo then you’d send it to demotix or some other press agency, most “citizen-journos” just want the credit they deserve, the last thing we need is a bunch of solicitors harassing everyone who’s photos got used.

  • Mick Orlosky

    The argument of “unless you’re willing to “play hardball,” don’t freely share the images online” is NOT the same as “You should expect images to get stolen.” It’s more ” You should expect them to get stolen AND THEN FIGHT BACK.” He is advocating the same thing you are -The phrase “play hardball” means to fight back against it.

  • Marry Root

    til I looked at the draft which had said $4473, I accept that…my… friend woz like they say truley taking home money in their spare time from there pretty old laptop.. there best friend had bean doing this 4 only about twentey months and resantly paid for the depts on there home and bourt a great new Ford Focus. go to, jump15.comCHECK IT OUT

  • Ed Lau

    No big deal. As long as they pay, it doesn’t really matter when. Plus, if they just go straight for the copyright infringement, isn’t there a sort of…”penalty” mark-up on the price?

  • OllieOh

    So this guy is basically advising photogs to not use social media in a way that’s competitive to other traditional media news outlets.

  • Andrew Kandel

    What if you had sold that image to another newspaper as an exclusive?

  • Gov

    It’s the newspaper that made it into business (the picture was already available to be _viewed_ for free).. if they make money on my pictures I don’t see why I shouldn’t get my cut. I wouldn’t take the moral high ground on this.. that’s blood on the newspapers hands imo.

  • Samuel

    I’m not asking *you* to not take a cut, by all means go ahead and do so, i make money from press images so should anyone who wants to but in a lot of cases they actual photogs have no desire to monetise the good (bad?) luck of being in the right (wrong?) place at the right time

  • Mansgame

    You get double the pay and let the other newspaper go after them.

  • Richard Horsfield

    Or because they are simply happy to get there 15 minutes of fame….

  • chris

    you can see one he posted it to social media and two he tweeted bbc news and other media agencies….so basically he was aiming the image at the press himself to begin with. I would be thrilled to see my photo on a publication and they said they were willing to pay a fee to the guy. Getting paid for an image that lets be honest anyone that near could have taken…..sounds good to me.

  • Gov

    Yup, see your point. Not everyone is like me, for me this would be a case where I don’t see why someone else should make money on my pictures without paying me, regardless of whether I initially wanted to sell it or not.

    I guess what really upsets me in this case is that they made the choice for the photographer and decided that their urge to print “now” was more important than the photographers right to deny them to print it at all .. or let them print it for money or for free. So, it’s not really a case of just making money on the picture.. it’s about making them pay (more than the standard fee) for violating photographer’s rights and stand up to let them know this isn’t an OK policy. But I guess not everyone sees it like this, and just go “I don’t want anything to do with this business”.

  • Samuel

    Yeah its the attitude of editors that is really the issue but then again its not really surprising, i did work experience at a local paper (albeit a small one) and a lot of the time the difference between getting a story/photo into the paper and ready to print was a real matter of 2 or 3 minutes.

    With time constraints on print an the growing online news presence it’s no real shock that editors are prepared to cut corners on the photo of a twitter user to get it to press.

    Doesn’t mean its the right thing to do but i dont suspect its going to stop anytime soon

  • Thanassi Karageorgiou

    …and then Getty sends me a cease and desist letter plus a $900 bill for “dmamges” caused by a googled image I used in a blog post 5 years ago that got a total of 9 lifetime clicks. BS