- Lack of Moral Rights Creates Orphan Photographs
- Public Sector Crown Copyright Rights-Grab: UK Trade & Investment
- Public Sector Rights-Grab: The Highways Agency
- Public Sector Rights-Grab: Wales Tourist Board
- Public Sector Rights-Grab: Countryside Council for Wales
- Public Sector Infringement: Wales Tourist Board
- Public Sector Serial Infringement: Queen Elizabeth II Conference Centre
- Cultural Institution Rights-Grab: The National Library of Wales
- BBC Infringement, Evasion and Repeated Attempts to Avoid Payment
- Broadcaster copyright infringement
- Olympics Rights-Grab
- Multinational Publisher Infringement: Heinemann
- Contractual Implications on Photographers of metadata stripping, Unauthorised Use and Onerous Contract Terms
- Metadata Stripping by the BBC Website
- Metadata stripping by National Newspaper Group
- Damaging theft of images by National Newspaper
- Serial Infringement by the Daily Mail
- Unreported use of Library Picture
- Repeated Infringement by Small Business
- Infringement by eBay Trader
- Passing Off (False Attribution)
- Non-Payment of Damages
- Non-Payment for Commissioned Work
- Threat of IP "Liberalisation" on functioning Small Business
- Benefits of USCO Registration
- Valuing Intellectual Property Rights
Lack of Moral Rights Creates Orphan PhotographsPhotographer "N"
“Eighteen months ago I was on a conference platform with others from different parts of the creative industries to talk about copyright and the best ways for users to ascertain creator/rights holder details. The broadcasting rep was telling us how the most difficult part of the broadcasting researcher’s job was verifying rights holder details, and it was from her that I first learned of the BBC's idea to be able to arrange all its own uses via some form of ECL system and completely ignore contacting creators.
I got a similar intimation from Matt at the IPO although he refused to be specific.
I have been a photographer now for 35 years. My first images were sold in around 1975/76. In the time I have been trading I have changed my trading name probably five times, my address as many, and my phone number a little less. When I started I had neither an e-mail contact nor a mobile phone, and whilst these latter have now been constant for some fifteen or so years, before that they changed several times.
During this period I have distributed scores of thousands of photographs, initially as black and white prints - none of which will have my current contact details - then as colour prints - again no current details on them - and then from about 1992/3 mostly as digital files. Many of the earlier digital files will also have incorrect contact details.
Whilst after each change of contact details I have always contacted every client, even defunct ones, with the changes, how many of my images (80,000+) will have been as diligently updated?
So even though my name is easily 'Googled', most of my work put out to clients, both commissioned and speculatively over at least the first twenty five years of my career, is likely to be orphaned in one way or another. Add to this the fact that thanks to the CDPA 1988’s Moral Rights exceptions the majority of my work published in Newspapers and a substantial amount of magazine work is published without out a byline, and perhaps this can give an indication of the actual extent of orphaned work - just amongst professionals. Can I keep track of uninformed uses? Not a chance. Do clients contact me to ask if they can use older material from file? Rarely.
Going back to the BBC. They used to have a large number of sports images for use with 'A Question of Sport'. These were exclusively transparencies. None of them will have my current contact details. How many of these images are still on file? What would the BBC do if they wanted to use one now or in the future?
I used to be a contractor on the Daily and then the Sunday Telegraph. Many thousands of my images are on file with them, and I have no reason to believe that they have purged me from their digital systems. After I stopped being part of the 'team', I stopped receiving regular cheques. But my work was still used as stock. I used to go to their library every six months or so and search through the editions. Due to time and losing the will to live I ended up only checking the final editions, but even so every trip used to reveal scores of uses, which I was able to invoice for £1,000s.
Now I’m no longer in London I no longer have access to their library, but have the uses stopped? Every now and again I pick up an online use, and have huge problems in getting paid for them, but how many uses slip through and get used and I am simply unaware of the use? The Telegraph blithely say they pay on invoice.
It is much the same for the Mail, Express, Mirror, Times, Sunday Times, News of the World, Star, Sunday Mirror, People, FT, Guardian, Observer etc., all of whom have used my work, commissioned my work, and stored my work in their libraries. Occasionally I get a payment, but being out of London I am not in a position to check all editions even if I could now justify the time to go through every paper locally available to me, which I can’t. So over a year how many uses do I not get paid for?
And yes I know that as my material ages it will be used less, but I get enough requests and queries for my older work to know that it does have economic value and could well be being used in a small trickle with almost every one of my former National (and regional) newspaper clients. But none apart from the Guardian and their system remains manual, so fallible, volunteer payments are all that are available to me these days, or so it seems.
How many of these institutions can say that they have updated all my details on all my older works?”
Public Sector Crown Copyright Rights-Grab: UK Trade & InvestmentPhotographer "O"
Throughout 2004 I photographed for a PR magazine produced as a joint venture by the British Embassy in Tokyo and UK Trade & Investment in London, intended to stimulate inward investment to the UK from Japan and distributed to high-level Japanese corporate managers. Production was co-ordinated from Japan by a 3rd party who commissioned a London-based journalist to write the stories and co-ordinate other UK writers. This journalist commissioned me and my contract was with her. Our agreement made clear that I retained copyright in my work and that it was licensed to the 3rd. party production company for single use in the magazine, all other rights being reserved.
After several issues has been satisfactorily produced and this work had become a significant income stream for me I arranged a meeting with UKTI to see if any other similar work might be available, at which it became known that I retained copyright in my work. Subsequently the following email was sent from UKTI to the British Embassy in Tokyo and forwarded to the journalist:
On another issue, XXXXXXXX XXXXX met with [Photographer O] the freelance photographer for the XXXXX publication. He has informed us that UKTI does not own the copyright for XXXXX's content, including articles and photographs, i.e. the contract we signed did not use the DTI terms and conditions which includes reference to the crown copyright. This means in effect that if we want to re-produce articles in other UKTI or government communications we would have to pay a royalty fee.
This is not acceptable and we need to urgently discuss.
UK Trade & Investment
Inward Investment Group
I then received this truly extraordinary piece of text from the American account manager at the 3rd. party production company as part of an agreement I was expected to sign if I was to carry out further work on the publication:
Our Policy on Submissions:
All articles, suggestions, ideas, notes, drawings, concepts, photographs or other information disclosed or offered to [client] for use in [publication] shall remain the property of [client] or its client.
As a sub-contractor of [client] you understand and acknowledge that [client] has both internal resources and other external resources which may have developed or may in the future develop articles, suggestions, ideas, notes, drawings, concepts, photographs or other information identical to or similar to any articles, suggestions, ideas, notes, drawings, concepts, photographs or other information received and that [client] assumes no obligation expressed or applied by considering or using it.
Without limitation, [client] shall exclusively own all now known or hereafter existing rights to articles, suggestions, ideas, notes, drawings, concepts, photographs or other information of every kind and nature throughout the Universe and shall be entitled to unrestricted use of the comments for any purpose whatsoever, commercial or otherwise without compensation to the provider.
- which reads to my lay eyes that the 3rd. party production company were so clever they were capable of thinking up for themselves anything that I could possibly ever think of or do, and unilaterally assumed ownership of all ideas and IP generated by any form of life throughout the Universe since the dawn of time, without any payment whatsoever.
Naturally I refused to sign it - my contract was not with them but with the journalist - and attempted to negotiate with UKTI, who presented me with their "standard T&C" that demanded full waiver of Moral Rights and transfer of my copyright to the Crown, and insisted that I would do no further work for them unless I signed it.
I consulted my professional association for advice and tried to negotiate, offering an extremely generous License to Use, but given that at that point I was dependent on this contract for the bulk of my income I keeled over and signed, even though the transfer of copyright resulted in only a small fee increase.
Having lost control over the use of my images I decided to ensure that everyone I photographed signed a standard Model Release as issued by Getty Images, to indemnify myself in case the images were subsequently used inappropriately. This annoyed UKTI and I received a phone call from an astonishingly boorish UKTI manager who appeared not to know the difference between an employee and a contractor, and forbade me to use Model Releases as "they frighten the interviewees and all we want are some fxxxing photographs."
I shot one more edition, without getting model releases signed, and then quit as soon as I had managed partially to replace the income from other sources.
The magazine went on to suffer a series of budget cuts; fees to the writers were reduced; cheap compact-camera images shot by the journalists were used instead of professionally-shot images, and original content withered away. Eventually the publication became a risible low-quality vehicle for press-releases and was terminated.
Public Sector Rights-Grab: The Highways AgencyPhotographer "A":
I have info. that I am ashamed to share (I am so angry with myself for been in the position where I had to agree to the T&C's, but frankly when you have a mortgage and two kids to feed, and I haven't done a very good job of this either, as my wife with job will attest, and no alternative income, you don't have any real choice if you can't get no other work...the usual excuses I hear you say ;)
Anyway, I appreciate this probably puts me in the camp of the "enemy" as far as you are concerned, as I signed a contract copyright grabbing draconian terms & conditions with an "agency" of the UK Government. I was basically told by the photo agency I work for that if I didn't sign the agreement (waiving all moral and intellectual rights I would not be given any more work. Nice.... I protested and then signed....the agency were basically my only regular client, so if I'd walked I'd have been royally screwed. I felt very alone....I pointed out the AOP T&C's etc...But ss the director of the agency said at the time..."what the xxxx can the AOP do about it anyway....they are useless in this day an age". I had to admit I couldn't put up any defence for the AOP...at the time or even now. They are simply not living in the "real world" regarding real pressures that are put to bear on working commercial photographers these days...Its almost as if they are living in an ivory tower..."let them eat cake" and all....
Anyway...back in the trenches....I was told that everything I shot was "Crown Copyright", as it was for a government agency....What really got my goat was how it was a Labour Government (supposedly defending "workers rights" and all), that was so influential in totally destroying any of my rights and using my own economic weakness to ensure I signed away all my rights to them...The irony eh ?
My photographs up untill this year were placed solely in their library, and presumably given / sold / traded with other government agencies (probably for favours if not hard cash...you know, the usual way the government seems to work ;)
Here's a screen grab of my work on their internal library:
Just recently the Highways Agency have now placed my work on Flikr....needless to say I wasn't informed of this....as I am nothing more than a mushroom with a lens in their eyes....why else would some dum mushroom sign away his rights...
What stuck me as totally hypercritical was how they kept my copyright info in the Exif Info ! Its as if they are trying to pretend they are "reasonable" people when in fact they are completely "unreasonable" if one looks at the contract shoved in my face in 2003....
Anyway, without further ado....here are the beans:
Checking the roads on your laptop before a family holiday | Flickr - Photo Sharing! [link removed to protect anonymity]
Check the Exif Info !
Is this something that may be of help to your case, or is it a "doomed case" as I signed the contract....at any rate I am an example of what happens when a photographer completely screws up and is desperate enough to sign rights grabbing contracts....
I'm not attempting to try and get any compensation for this sorry mess, but thought it may be a salutary tale to tell of how photographers rights are taken away from them in reality..as opposed to how lawyers seem to think it works, from the comfort of their cushy well paid job sitting in a leather arm chair in chambers passing judgements on desperate foot soldiers like myself, alone, low on gas and surrounded by Indians....
Hanging my head in shame....
Public Sector Rights-Grab: Wales Tourist BoardPhotographer "J"
For a number of years I worked as a freelance photographer for the Wales Tourist Board. They operated a "Copyright Grab" but there was a nod and a wink arrangement between their staff and the photographers that the latter could keep duplicate images from the shoot for their own use. I was just about happy with this.
In 2001 the photographers got together (yes!) and presented a joint case to the WTB for a fairer contract which did not involve the copyright grab. This was ignored, and a couple of years later the contract was re-written with the effect that the balance was more firmly still tipped against the photographers. We had to agree in writing to waive moral rights and hand over ALL images from the shoot/commission. I refused to work for them at this stage.
Despite a campaign at the political level by some Welsh photographers, when the WTB was incorporated into the Welsh Assembly Government the latter took as its model for dealing with photographers that previously used by the WTB. All departments now operate a copyright grab as far as I know.
I am attaching a letter to the then Welsh Ec. Dev. minister written at the time of the "incorporation" which is a little more accurate with regard to dates and details.
Mr Andrew Davies
Minister for Economic Development
National Assembly for Wales
Dear Mr Davies,
I am writing with reference to the integration of the Wales Tourist Board into the Welsh Assembly Government, and the Wales Tourist Board’s attitude to copyright.
I am a freelance outdoor (landscape) photographer. You may recall that in the autumn of 2003 my A.M., Elin Jones, brought to your attention (your ref AD/6186/03) the fact that freelance photographers working for the Wales Tourist Board are required to hand over their copyright to the Board. While this requirement is not illegal, it by-passes the 1988 Copyright Act which was designed to protect the rights of the creator.
I believe that a number small number of other photographers approached you either directly or through their A.M’s about this issue.
According to the replies received by Elin and other photographers, the WTB’s method of operation is also adopted by the Welsh Development Agency.
I note from an article in the Western Mail (24th January 2004) that you were compiling a strategy for the creative industries in Wales. In the article you are quoted as saying “A strong creative industry sector in Wales with watertight copyright is key to the success of the economy” and “The wealth from the sector belongs in intellectual property rights”.
In view of your support for the creative industries, you must agree that the WTB’s contractual arrangements are grossly unfair to Welsh photographers, who have no choice but to accept them or not work. The more professional photographers, such as myself, and arguably the better ones, are now refusing to work for the WTB, which is to no-one’s benefit. Nor does it benefit the promotion of tourism in Wales, which to a large extent depends on good quality photography.
Another point made by the photographers is that the WTB doesn’t, in fact, need copyright, and other arrangements could be agreed upon which could satisfy both parties. A group of photographers did in fact approach the WTB early in 2001 with this in mind, but they were ignored. Since then, in a re-written contract, the balance has tipped even further towards the WTB.
I’m sure you have many other issues to keep in mind regarding the WTB’s incorporation into the National Assembly Government. Nevertheless, I do hope you will consider this one, affecting, as it does, a small number of Wales’ most creative people. As it stands, and unless changes are made, these people are unable to maximise the income from their skills due to the unethical behaviour of some publicly-funded bodies.
If you would like any further information on this issue, I would be pleased to assist. In the meantime, I would be interested to see a copy of your strategy for the creative industries.
I look forward to hearing from you.
Public Sector Rights-Grab: Countryside Council for WalesPhotographer "J"
A few years ago I proposed a book/exhibition project to the Countryside Council for Wales (an "Assembly-Sponsored Public Body" = quango). Towards the end of one financial year i was given £1000 to make a start on this. At the start of the next financial year the project was offered to other photographers under a competitive tender process. I lost. CCW transferred my intellectual property to themselves.
Public Sector Infringement: Wales Tourist BoardPhotographer "D"
By request, I wrote and supplied photos to the Wales Tourist Board for use in their advertising magazine, on caving. No problem, other than some turned up on the website without permission. I invoiced a minimal fee and it was paid. Then it happened again the following year - continued use, another invoice. They said they wouldn't do it again and we agreed that there was no permission for retaining digital copies anyway. The following year a new publication appeared which used my pics but also credited them to someone else, all without my permission. When I found out I sent a proper invoice (that is, full rate calculated using a Getty source) - and then found that the whole was on the website again. Another invoice. Short story, they paid market rate (that is what they would have paid if this had been properly negotiated, without the negotiation downwards) - no teeth again, and they didn't like it at all. I think the pics really have been deleted now! Just as with all such instances, there is no payment for all the time and anger and time and hassle involved in getting to the end point.
Public Sector Serial Infringement: Queen Elizabeth II Conference CentrePhotographer "O"
In 2002 I carried out all photography and co-ordinated design and print for an important corporate brochure for the Queen Elizabeth II Conference Centre. At the time they were my most important client by turnover and I carried out numerous PR, below-the-line advertising and corporate photographic and design/print projects for them. All of my work was licensed for five years to the QEII under the standard Terms & Conditions published by The Association of Photographers, of which I am a member.
I discovered that the QEII had used some of my images without authorisation in a small brochure they had commissioned elsewhere. When challenged, the QEII blustered that they "owned" the images (they didn't) and that "anyway that brochure was a small run and is no longer in use". Several other infringements and invoice queries then occurred, resulting in the breakdown and termination of my commercial relationship with the QEII Conference Centre.
In 2008 I was contacted by the designer with whom I had worked on the corporate brochure. He had had a request for "high-res image files and original artwork" for the brochure from the QEII (with whom he had continued to work after my relationship with them ceased) and did I have copies? On investigation I discovered that the QEII had amended and altered the corporate brochure out of license and posted it as a PDF download to their website. They had also created an online image library which contained some of my pictures without authorisation and falsely asserted their copyright over them.
My designer sent the QEII the following email:
Just something to note. If you are going for a reprint of the QEIICC brochure that was produced a couple of years ago by [my company], I think you will need to check with [Photographer O], as he owns the copyright of the photography and the IP of the job. You may find that any license was for the original printed job only, which will need to be re-negotiated for any new version. I have attached a link to contact him with and copied him in on this email.
The QEII replied:
We have actually moved towards a paperless environment now so all our brochures are pdf only so we don't print as part of our green policy. We haven't altered the old design - only updated the capacity figures and some of the text to match where we are now and have updated some of the photographs with new ones which we own the copyright. I originally asked for the artwork from you but unfortunately you said you had deleted this from your files so we had no option but to work with the lower res pdf to do the edits outlined in-house.
Hope this clarifys things (sic.)
I found this reply unsatisfactory and replied:
The original job was licensed to you for a single print run of your brochure. The design and layout is (c) XXXXX XXXX 2002; all photographs that I originated are (c) [Photographer O] 2002. Some photographs included in the brochure were subsequently licensed to the QEIICC for unlimited usage; others were not.
We would be happy to grant you a License to Use our intellectual property for PDF brochure distribution, term 5 years from first use (to take place within 6 months of today) for 50 per cent of our original creative fee for this project.
Please note that any unlicensed usage of our intellectual property would be a breach of the Designs, Patents and Copyright Act 1988, for which damages will be pursued. We actively police usage of our intellectual property, both individually and though my professional association. Thank you.
The QEII replied:
When the brochure was produced in 2002, six years ago, a pdf was also supplied for our usage alongside the print run. The pdf version is on our website only.
However, if you wish to pursue this issue further please let me know as I will need to refer the matter to our government legal team for their advice.
Hope this clarifies things for you
At this point I lost patience and commissioned a firm of no-win-no-fee IP lawyers to represent me. If the QEII Conference Centre had requested a license extension on the terms I had originally offered it would have cost them around £8,000. The IP lawyers decided to claim for what they regarded the then market value of those images to be and issued a request to the QEII to settle for £46,000.
The QEII blustered but on discovering that my Terms & Conditions were watertight and I did indeed retain copyright of my work, after negotiation settled at £25,000 in respect of the infringement with a further £1,500 three-month license extension to cover use until they could replace my work in their brochure and website, with no further use to be made of my work. The IP lawyers retained 25% of this settlement in commission.
Out of curiosity, when I finished writing this report I decided to look at the QEII website and discovered that they have done it again! There is my work, flagrantly used out of license, nine years after I first delivered it and two and a half years after their License to Use expired! Thank you, QEII: I could do with another windfall this year.
Cultural Institution Rights-Grab: The National Library of WalesPhotographer "J"
The National Library of Wales has a large collection of photographs which it has either purchased or been gifted.
It now requires the photographer to agree to digitisation of the prints before any purchase can go ahead, and that the Library can reproduce said images according to its normal terms and conditions (I've no idea what they are and it couldn't tell me!).
The NLW is WAG-funded.......
NOTE: Photographer "J" has a dossier of evidence that can be forwarded to the IP Review on request.
BBC Infringement, Evasion and Repeated Attempts to Avoid PaymentPhotographer "L"
In the 12 years of EPUK's existence, as a moderator and director I have seen the BBC become the UK's most profligate infringer and generator of orphan works. I am sorry to say that my personal experience is typical of that of many of EPUK's members.
I was contacted by phone by a BBC journalist wanting to pursue a photo-story that I had published on my website for portfolio and historic purposes. I spent some time providing information and arranged for the journalist to be able to interview a key contact. I made no charge for this, there was a tacit understanding that some of my photos might be used subject to further discussion.
I heard nothing more and was surprised to see the story aired on BBC TV a few days later. It included 3 copyright photos of mine. Rather than seek my permission the BBC filmed 3 photos that I had given as complimentary prints to my contact. The prints were marked with my copyright stamp and contact details, my contact knew she had no authority to permit this, and the journalist could have easily phoned or emailed me since I gave her the story in the first place.
This was a flagrant infringing use of my copyright material for which I wanted payment. I therefore contacted David Knight, the BBC's Rights manager. Knight was dismayed saying "I am sick to death of these so-called journalists causing these problems". He said he would forward my letter to the relevant producer.
Weeks passed, I heard nothing. I phoned Knight, who confirmed he had forwarded my letter via BBC internal mail 3 weeks previously.
I wrote again, this time to the journalist, along with an invoice for 3 broadcasts of 3 photos, plus use on the BBC website. More weeks passed without response or payment.
Finally I wrote again, to the producer. I sent a Letter Before Action and a copy invoice. This time I sent it by Recorded Delivery.
A few days later I received a phone call from the Producer. He claimed this was the first he had heard of the problem, and he had spoken to the journalist who claimed likewise. Allegedly my earlier letters had never arrived, despite the fact that Knight had confirmed receipt of the first, by phone. The producer accepted there had been infringement, however, he did not accept my invoice, so no contract existed, so I could not sue to recover the debt. This is legally correct. I told him that since he rejected the invoice as a means of resolution I should have to sue for copyright infringement. He then passed the matter to the BBC legal dept.
A few weeks later I received an ex-gratia offer of about one-fifth of my invoice total from BBC lawyers, who of course denied liability already admitted by the producer. I had invoiced at my normal rate for this unique archive material. I rejected the offer, explaining why.
Over the ensuing few months, I had to deal with an escalating list of arguments as BBC professional lawyers sought to inveigle and undermine my claim. They wrote two more letters, I wrote two more replies. The last of which was 4 pages of dense argument and a 7 day notice of legal action. On day 6 I received an offer of £800 to settle, just slightly more than I had claimed 8 months previously. I accepted.
This infringement demonstrates the problem : I spent at least 40hrs and 3 trips to the PO to obtain £650+VAT that was owed for the use of my work. The BBC must have wasted at least twice as much again on the salary of their lawyers. As a freelance my time is unpaid. I got nothing extra for that 40hrs. Moreover I lost 40hrs when I should have earned through other work.
Infringers know this, and know that if they can drag things out usually creators will simply give up. If I had to take it to court, the court would not have recognised that my losses were magnified by this tactic. Such overheads are deemed to be merely the cost of doing business and are not claimable as costs.
Of course I could have employed a solicitor at the outset, but 40hrs@£150/hr is £6,000 costs which I could not afford to risk in pursuit of a small claim like this.
The vast majority of claims are under £300 and escape detection. When they do get found out, obtaining payment is simply uneconomic. Infringement is now a systemic part of mainstream publishing and broadcast's business model exactly because it's such an effective way to aggregate input-free profit from small businesses. Or "steal with impunity", as it would be called in any other context.
Broadcaster copyright infringementPhotographer "C":
I supplied a 20 second clip of a spectacular Rally Car crash to a Motorsport video company, who produced the event DVD for the rally, of which I was one of the organisers of the event, and then they supplied the full rally footage to a sports satellite channel for their usage. I gave them permission to use the footage on the event DVD, and also gave them permission for this footage to be used in the TV coverage, that they forwarded to the Sat company. I also informed them that the footage could not be used for any other reason whatsoever, which they agreed to, and should this footage be required for another programme then I should be contacted to arrange a suitably mutual fee, before any use.
At the weekend I received a few calls concerning the footage as this series has just started to be aired, and was being used on the 2010 Best of Crash programmes on this channel, and immediately contacted them requesting their reasons for using footage of which they had no right to use. I was informed that “When those shows are provided to ****** TV we retain the right to use short segments for our Best of Crash shows, in full agreement with the program suppliers” I have contacted the company I supplied the footage to and their reply was “There has never been a formal agreement with ****** TV on what the footage can or cannot be used for, and I have never agreed to this usage or their supposed rights”
I have also now found out, that the full rally footage was supplied FOC to this TV channel, and can’t believe that the company did this without any form of payment.
The problem I have now is how do I go forward to have this footage removed from the programme, which is being shown I believe in 40 countries, and who do I invoice for this usage, or is it a catch 22 situation in which I can not take any action. I also want this coverage removed, as it is not benefiting me in any way, as there is not even a credit given to the persons who actually took the footage.
Olympics Rights-GrabPhotographer "B":
For your information and as a reference, below is the text from the document supplied to accredited photographers at Olympic Games and which must be signed ahead of being awarded accreditation.
"I hereby acknowledge and agree that: a) any photographs taken by me at the (Vancouver 2010 Winter) Olympic Games, including those of athletes competing within any Olympic venue, will be used in news services for still photographic editorial purposes only; b) the use of such photographs for advertising or any other commercial purpose, in any medium or in any manner whatsoever, is expressly prohibited by the IOC, unless the prior written consent of the IOC is acquired; and c) the dissemination of moving images or sound captured in an Olympic venue, through any media, including display on the Internet, is strictly prohibited."
It may be that for London 2012 alterations may be made but this was in force for Vancouver last year.
Multinational Publisher Infringement: HeinemannPhotographer "D"
I once wrote a book for Heinemann on caving, as part of a sports series; it was commissioned at flat rate for not a lot per word, but the photos were supplied at real rates under my terms as part of the package, so it was quite good overall. There were UK and US editions, in both hard and softback (so four versions). A couple of years later a friend told me of a book published in Swedish that seemed similar. Tracked it down, it was the identical book to the UK version, only with my name stripped off the cover and contents page and photo credits. Obliterated. Heinemann said they thought they had the rights to sell on the content (they did for words, but not for pics - it was plain in the contract when they bothered to check it). We came to an agreement for payment for use of pics, loss of name and the rest of the run was pulped (their choice) rather than arranging a sticker inside to state the author name. The payment agreed was minimal in the end: there were no teeth to use to get a decent result.
Contractual Implications on Photographers of metadata stripping, Unauthorised Use and Onerous Contract TermsPhotographer "I"
Sports photographers are obliged to sign documents restricting their use of images (mostly to editorial, non commercial). Failure to sign the document means that accreditation is not issued. In many sports this requirement is essential to protect the amateur status of the competitors. In major (mostly non Olympic) sports, competitors have deals with agents and marketing companies and woe betide any photographer who steps on their toes. If these images are picked up as Orphan Works and used inappropriately, where does it leave the photographer? -
With a problem. The Premier League along with IPL cricket and the Australian Rugby are totally obsessed with protecting their license conditions, it does not matter a jot how someone comes across a premier league football picture, you the photographer are responsible for any use that they consider outside of the licensing agreement, they are using software to trawl the web for offending images, they are even finding unprotected images on photographers websites.
Unfortunately the contracts with the Premier League are drawn up by the Premier League and as always puts them very much first. We had a NAPA meeting with the Premier League two years ago and it was stated by Derek Johnston that as license holder we would be totally responsible for any unauthorised use, i.e. commercial. This type of use requires the user of the image to have purchased an end user license from DataCo. It is enforced simply by suspending the agency or photographers license, making it impossible to obtain accreditation.
The Premier League are suspending photographic licenses of photographers with Premiership images displayed on their own sites. Getty though have all of their images public facing.
Cricket Australia tried to impose so unacceptable restrictions on image use we all threatened a boycott even going as far as boycotting the first game, it felt very odd siding with Getty. Getty will put you in court if you don't pay for one of their 49 cent pics, so you would not get away with labeling one of their images as Orphan Works.
Don't get me started on the Olympics, thats another joke. At this moment we have the Mayor Boris involved in what can only be termed a fiasco, you have Getty, PA, Reuters, and guys working for News International on the MAC team and the BOC think it can be impartial. Getty are the Olympic photographic agency and PA are their UK media partners, is there any room for the rest of us poor mortals?
Our view is that there can be no such thing as Orphan Works, every one of our images goes out with fully identifying meta data, if this is missing its not Orphan Works its stolen and we must take the required action. I brought this very subject up when the bill was being drawn up but as usual we have amateurs trying to make policy for professionals.
Metadata Stripping by the BBC WebsiteThis can be demonstrated at any time.
Images released to the media by agencies such as PA and Getty Images always contain full ownership and rights IPTC metadata, as do images submitted directly by most professional photographers. It's part of the workflow.
Go to the BBC website and find any photograph that has an agency credit such as PA, GETTY IMAGES or similar in its lower right-hand corner. Drag it to your computer's Desktop.
Open the image in any media browser application capable of displaying IPTC image metadata. Many such applications are available for all computer platforms; all versions of Adobe Photoshop released in the last ten years can display IPTC metadata.
Note that all metadata fields, IPTC and EXIF, are blank.
For years now the BBC has knowingly, and because it has been told that this act facilitates infringement, deliberately and systematically stripped all metadata from images uploaded to its website in breach of the Copyright, Designs and Patents Act 1988 Section 296ZG:
Electronic rights management information
(1) This section applies where a person (D), knowingly and without authority, removes or alters electronic rights management information which—
(a) is associated with a copy of a copyright work, or
(b) appears in connection with the communication to the public of a copyright work, and
where D knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright.
(2) This section also applies where a person (E), knowingly and without authority, distributes, imports for distribution or communicates to the public copies of a copyright work from which electronic rights management information—
(a) associated with the copies, or
(b) appearing in connection with the communication to the public of the work,
has been removed or altered without authority and where E knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright.
The copy of the image file on your Desktop has been anonymised and is potentially orphan. If you then crop off the agency credit and post it to your blog, anyone who copies it from there can have no idea of its original provenance. If the image does not register in a TinEye or Picscout search it is then fully orphaned, and joins many hundreds of its compatriots orphaned daily by the BBC.
Metadata stripping by National Newspaper GroupPhotographer "F"
I have been following the DEB campaign and wondered if this would be useful as something to chuck into the debate in the commons.
I have sampled some of folders and averaged it out to come up with a figure of over half a million. This is just for the entertainment section. I could not find any with a jot of meta data.
The counter points are that it is not untypical to have this sort of thing on such a large web site and there a multiple duplicates of different sizes and crops.
I found it using Tineye while looking for unauthorised uses of images sold through Alamy. The link target is now behind the Tineye proof paywall.
Other than this 9.4% of my sales through Alamy would have been unreported by the Mirror Group, the Telegraph or Paidcontent.co.uk had I not discovered the use myself and alerted Alamy. Shamefully enough I only was paid the going rate.
Damaging theft of images by National NewspaperPhotographer "G"
For over twenty years I have been commissioned to photograph super-yachts for an exclusive market that demands restrictive and discreet use of its images. My company manages the images , preparing them for global distribution restricted to the media of the commissioners choice, ensuring the best possible colour reproduction. My reputation and livelihood in this market depends on discretion on image usage and quality of reproduction. In 2004, the Daily Mail reproduced images of a particularly important vessel that were stolen from a website that only existed for an awards competition. They did so to illustrate a very poor article in one of their glossy magazines. The images on the website were all clearly watermarked "Not for reproduction" and with a copyright symbol. Not only did they crop out this watermarking, but they also used these low resolution images for press reproduction in their weekend magazine, resulting in atrocious image quality. They made no attempt to contact the owner of these images. It was blatant theft .
This is just the sort of piracy that the present initiative would encourage. Since that date I have not been commissioned by the client concerned for that boat owner. This has meant an ongoing loss of income not only to myself and consequently my family, but also of course a substantial loss in tax revenue.
This is only one of many instances that have occurred in my career. In a substantial number I have been able to recover fees using the existing copyright protection, but not without incredible difficulty due to both the general public's and somewhat surprisingly the UK legal profession's ignorance of what constitutes copyright. At best I only stood to recover a sum equal to the relevant photographic fee for reproduction, with no recompense for my time spent pursuing the thieves and no chance of recovering all of my legal costs, not to mention any mitigation of the damage to my reputation.
[This act by the Daily Mail is in clear breach of the Banier Judgement, in which Mr. Justice Lightman stated said: "This may be common newspaper practice and one which newspapers normally get away with. The risk of infringement proceedings may, from a business and circulation point of view, be worth taking. It may be economic to 'publish and be damned', but it is plainly unlawful and the sooner this is recognised the better."]
Serial Infringement by the Daily MailFrom jeremynicholl.com, with permission
UK Daily Mail Faces Million Dollar US Copyright Suit From Mavrix Photo
The Daily Mail's novel internet copyright concept
Can photographers win substantial compensation in a US court from a British copyright pirate? We may be about to find out, courtesy of the Daily Mail.
Florida based celebrity photo agency Mavrix have filed suit against the British newspaper for multiple copyright infringements, and are seeking statutory damages of $150,000 per infringement. With up to 10 images involved the total sought comes to $1.5m plus attorney’s fees and “any such other and further relief as the Court may deem just and appropriate”.
In court documents Mavrix accuse the Mail of “a pattern and practice of intellectual property piracy”:
“One of the Daily Mail employees who Mavrix interacted in the past regarding Mavrix images was Elliot Wagland, the Daily Mail Online Picture Editor. Defendants with Mr. Wagland’s assistance have a history of copyright piracy conduct. Indeed, the pattern and practice of Defendants is to ignore the demand of photo agencies or photographers to agree to rates before use and to simply take the pictures and use them without compensation or to then offer token compensation.”
Those are harsh words, but hard to contest: even a casual glance at recent editions of the Mail reads like a brief history of plagiarism.
- In April photographer Clive Flint discovered that an image from his flickr account had been lifted by the Mail and used in a pre-election piece attacking Liberal Democrat leader Nick Clegg.
- In May Emily James’ polling station images were swiped from TwitPic for a Mail “election night shambles” story. James billed the paper: Wagland tried to bluff his way out using the public domain defence, but later backed down.
- June was World Cup time, and the Mail were caught at it again, this time with the England WAGs.
- August provided a fine display of irony failure when the Mail ran a story on, of all things, copyright infringement and Russian spy Anna Chapman. The newspaper illustrated the story by lifting the very pictures that were at the heart of the dispute.
- In September the Mail ran a lavishly illustrated story on Conservative MP Mike Weatherley with images lifted from his flickr account, where they were all scrupulously labelled “© Mike Weatherley. All Rights Reserved”. The Mail also managed to introduce a novel legal concept by publishing them “©Flickr/The Internet”.
- In November it was Newcastle photographer Keith Pattison’s turn, when he caught the Mail using his 1984 picture of the miners’ strike to illustrate a story on public sector pay cuts in 2010.
- In December the Mail refined their novel net credit: an image of two year old Rhiya Malin was bylined “© The Internet”.
So frequent have been the allegations of copyright infringement at the Mail in recent months that earlier this year a company spokesman was forced to state in the British Journal of Photography that it was not the newspaper’s policy “to breach photographers’ copyrights,” and that it would be “happy to look into individual cases.” The BJP noted however that the spokesman declined to comment further when asked to explain why the photographers hadn’t been contacted, in the first instance, for use of their images.
And the examples listed above are just those that are easily uncovered: it’s not unreasonable to assume that there are more, especially given the Mavrix allegation of “a pattern of conduct that is apparently part of Defendants’ modus operandi with other photographic agencies”.
Alamy photographers in particular have pointed to a pattern of the Mail downloading images and neglecting to complete Alamy’s self-billing system, only paying when pursued by the agency or the photographer. When one Alamy contributor recently contacted the Mail over unpaid uses the picture desk had an excuse ready:
”We use as many as 500 pictures a day and I can’t possibility notify all the photographers whose photographs we use as I would always be on the phone.”
The most significant thing about the Mavrix case may not be the allegation that the Mail is a serial infringer, or the sums of money involved, but the jurisdiction. While the photo agency is American the Mail is of course robustly British, and the traditional view of such cases is that they go to court in the country where the infringement occurred. In the Mail’s case that would be the UK, where the courts would be unlikely to award the kind of sums that Mavrix is claiming.
But in the 21st century, when most major publishers are global enterprises, and their publications are available worldwide on the Internet, such a territorial distinction seems absurd. If a copyright holder wants to pursue an infringer it makes sense to do so in the territory where the reward is greatest, which is not necessarily where the infringer is nominally domiciled. It’s exactly this legal approach that has led to London becoming the libel capital of the world.
That is clearly a key part of the Mavrix strategy: of the suit’s 33 clauses 11 are dedicated to establishing that the Mail is not in effect a British entity, but international, and with clearly identifiable business interests in the US. Essentially the Mavrix argument is not that the case should be heard in the US because they, the plaintiff, are a US company, but because the supposedly foreign defendant has identifiable US connections.
If Mavrix succeed the result may have considerable implications, for not only US individuals can register their work at the US Copyright Office: anyone can do so. In the past that was difficult and expensive for those not resident in the United States, since the office only accepted hard copy submissions. But since the office began to accept online submissions the process has become cheaper and simpler: by regularly batch registering images online photographers can register all their work for as little as $175 a year.
Given the potential damages available under US copyright law that $175 starts to look like very cheap insurance indeed: there are after all plenty of US intellectual property lawyers prepared to work on a “no-win no-fee” basis so long as the material in question is registered. So if the Mail take a tumble in the California court it could be good news for US intellectual property lawyers and photographers everywhere: very bad news for corporate copyright infringers no matter where they are from.
[These acts by the Daily Mail are in clear breach of the Banier Judgement, in which Mr. Justice Lightman stated: "This may be common newspaper practice and one which newspapers normally get away with. The risk of infringement proceedings may, from a business and circulation point of view, be worth taking. It may be economic to 'publish and be damned', but it is plainly unlawful and the sooner this is recognised the better."]
Unreported use of Library PicturePhotographer "D"
I supply Alamy. I have several instances of use without reporting, that I have found my pics in print and not paid for by Alamy (because it wasn't reported back). The most recent is this month, from a pic published over a year ago in a respectable society magazine (RSPB type of thing), a double page spread that was not paid for. That story is commonplace ..
Repeated Infringement by Small BusinessPhotographer "K"
This document outlines how one particular infringer decided to use copyright protected works without permission. Not once, but twice... claiming in the first instance it was trade practice to steal and on the second occasion state that they didn't know the retrospective license to cover the first infringement had not covered ongoing use....
- 2007 Magazine acquires single use rights to a short feature comprising of text and images. Invoice clearly states single use rights
- July 2009 Same magazine acquires single use rights for a second short feature comprising of text and images. Delivery note and invoice clearly states single use rights.
- January 2010 I discover that the publisher is reproducing both magazines on their website, and offering for sale PDF downloads of both. It should be noted that electronic rights had not been acquired, or requested at any time in the past.
- The editor of the magazine is contacted. Here is his reply:-
- The publisher is contacted via email. The web page is removed the same day. Attempts to contact the publisher for 7 days via the phone fail. An email is sent outlining fees, with a 7 day time limit. Fees for an ongoing license is offered.
- Infringer responds; defence is based around implied license, informal nature of the original license and trade practice to publish past editions on their websites. In addition, infringer denies offering PDFs for sale. Furthermore, the offer of an ongoing license is declined:- "Please note that your copyright works have already been removed from our website, and there is no question of any ongoing use being made of them."
- Responses assert ownership, proof of original license restrictions and evidence of PDF being offered for sale.
- Infringer agrees to settle in full on day 7. Invoice issued with clear and concise retrospective license terms and expiry date (as per their request) plus 7 day payment terms & std penalties for late payment.
- October 2010 Checking the magazine website reveals that all of the original works have been placed back online, including PDF sale.
- No-win-no-fee IP lawyer contacted, case outlined and they agree to work on my behalf. Publisher is contacted, and they offer the following defence:- "An agreement was reached as per emails below, and payment was accepted and received by your client as a full and final settlement."
- Under my instruction, the lawyer asserts flagrancy (ongoing use declined, infringement continued) and reminded the publisher the terms of original settlement, asserting that the license issued and paid for was retrospective.
- Publisher responds and agrees to settle in full:- "This is my personal view but I think you have had enough from such a small company as ours. We are very small, did not realise this licence agreement had a date of expiry, and this is a fab way for Simon to receive a belated Christmas present."
- Final settlement was for 2000, with 25% due to the lawyer.
We are the owner or the licensee of all intellectual property rights in our site, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
And they go on to say:-
You must not use any part of the materials on our site for commercial purposes without obtaining a licence to do so from us or our licensors.
To claim misunderstanding is, in my view, completely indefensible.
Infringement by eBay TraderPhotographer "F"
In 2008 someone was had copied images from my website, removed my copyright over writing and was re selling framed prints on Ebay. Police and Trading Standards refused to get involved. The Police said it was a civil matter and trading standards said they had other priorities. The thieves ignored all contact so I took it to the small claims court. I was lucky the court heard the case as I understand they usually will not hear copyright cases. I wont my case but got no payment. I then got a charging order on the thief's house. Then the judgement was overturned on the grounds that I had sent the court documents to the thief's last known address and although she still owns the house only her daughters live there and she didn't receive the documents. I then got a second hearing and won a second judgement. Still no money so I got charging orders on both their houses. Then the thief applied for a variation and offered to pay 40 pounds a month. They didn't turn up for the hearing so it was thrown out but about a month later she applied again and was allowed to pay 50 pounds per month ( despite owning 2 houses ) as she says she is on a low income.
In summary I have judgement although the thief will have the best part of 10 years to pay for the theft from the date they stole it and when they eventually pay it will only be my normal price from 2008 with no punishment.
As a result it appears copyright is unenforceable. I have new cases of my images being sold on Ebay but there seems little point in spending lots of time and money trying to prevent it.
Here is the latest example from todays ebay listing and looks suspiciously like one of my images:
That photo cost me 350 pounds per hour to charter the aircraft plus 30 grand for my camera equipment. Here is my original
Aside from the Ebay problem it now seems to be the norm for websites to acquire images from google and at any time there are vast numbers of my images being used illegally.
Passing Off (False Attribution)Photographer "D"
I have two instances of someone in the US using my pics under their name, once in Germany and once in the US, including cover magazine use. The German one I got nowhere; the US one I got a minimal fee. I commonly find my material scanned/copied and placed online by others ... Once even found some of my original prints being used by a lecturer in a photo evening class, where it was made out they were hers.
Non-Payment of DamagesPhotographer "H"
In common with most photographers, I can give you details of dozens of infringements.
Probably the most significant case was a local estate agent who based one of his marketing campaigns on two of my images - including a shot of my own house! It progressed to the county court and I won. The value of the claim was relatively small (about £1350) but I still haven't seen a penny of it two years later.
More minor infringements include the usual Alamy abuses by the Daily Mail, other nationals and various monthly glossy magazines who "forget" to invoice themselves for the download.
Non-Payment for Commissioned WorkPhotographer "E"
I am perusing a Production company who are running a touring Irish dance show. I was commissioned by them several times and they never paid me for the last 3 commissions. Before the final commission we'd agreed a payment plan which didn't materialise because they went bankrupt a few days after the shoot. The company resurfaced within weeks (unbeknown to me) and toured the show using a large number of the images on a website, program, souvenir brochure, dvd, posters and theatre websites. When I found out, I wrote to them directly, and through the liquidators, using the standard AOP format letter, instructing them to remove all materials but would consider a fee equivalent to what I was owed (roughly £2.5k in total) to issue the licences. They ignored that letter, so I contacted their ISP and the ISP threatened to take down the site. I then got a call from the production company and correspondence started, which has culminated in the email below. I am obviously rejecting their offer, but have held off informing them until I have collected all the evidence I can.
Through the whole period of our correspondence (six months) they used the images selling products at the shows as they toured the country, as well as selling dvds via the website. I have now got video evidence of them selling at a show back in Dec, I have a copy of the programme and souvenir brochure sold, and had a DVD ordered for me by a 3rd party via the website. I have also recently ordered a DVD in my name and am awaiting that. I haven't counted the total number of images used, but it would total around 70 across all media. The tour starts again in March so I am now waiting to see if they carry on trading or Phoenix the company yet again. I have spoken to IPP and may use them or a local IP lawyer, with a view to pursue the company as a blatant, persistent and significant infringer with a claim of around £300 per image per use so I can then get the case heard in the patent court. Any other court is obviously not an option.
With regard to the video on the DVD, I know that they settled with the video production company last year for a sum of around £9k if my memory serves me right. The attached files are some of the evidence they gathered back in May.
I am also in close contact with another photographer who they have started using. They are also now in dispute with them with regard to her images being used on the website without payment being made. Again, she is having to wait and gather enough evidence of usage before it is worthwhile pursuing them.
Threat of IP "Liberalisation" on functioning Small BusinessPhotographer "G"
The proposals on the table at present would weaken this already parlous state of affairs, whereas they should be strengthening creators rights and be considering the introduction of punitive costs to dissuade piratical behaviour, especially given the importance of the creative sector to the UK economy.
On a separate but equally important point, the present proposals would weaken the whole area of image licensing, another subject poorly understood by those outside the creative sector. Advertising photography day rates have remained mostly static since the 1980s. Given UK inflation since then, for most high end photographers would not find it economically viable to remain in the profession if it were not for the use of licensing systems. My business established in 1974, only remains viable today because of the income generated by extended usage of the images commissioned. I employ a large number of freelance specialists on a regular basis (assistants, stylists, model makers, home economists etc.) I also regularly purchase cameras, lenses, accessories, computers and ancillary items. I also pay rent, business rates, electricity, gas and 'phone bills for my studio premises.
If my business were no longer viable due to some as yet unproven theory regarding the relaxing of copyright, Her Majesty's Government would lose the tax and national insurance contributions from not only myself but also those I employ in addition to the benefits generated by my company's purchases.
In the overall scheme of things this may seem to be small fry in comparison to the global corporations that would in theory benefit by the relaxing of copyright, but there are two important points to consider here.The first is I am one of many many creators that pay full UK tax and national insurance , not the meagre percentages gained from corporations using tax avoidance. The second is that if the rug is pulled from under the feet of the true UK professional creators who invest not only their lives but their income in to to pursuit of excellence, then the quality of image content will fall substantially and the UK will lose it's enviable prominence and reputation in the global creative industry, and of course the associated economic input.
Benefits of USCO RegistrationPhotographer "G"
In the USA the copyright laws seem to be more effective. When the UK agency that originally commissioned me to photograph Sutters Wine for the USA went in to administration without paying me, I used the stronger and clearer US copyright laws to get payment directly from the vineyard with no hesitation on their part.
Valuing Intellectual Property RightsAccording to this leaflet published by the IPO, Intellectual Property Rights (IPR) are difficult to value and primary licensing between rights holder and user is key. Clearly, according to the IPO, Extended Collective Licensing schemes represent a very poor way of valuing and licensing IPR. The document acknowledges early on that:
"There is no easy or foolproof way to value IPR, and it can become complicated."
There is more.
Page 3: Valuing IPRs can seem difficult and complicated because:
- there is no easily-understood set of valuation rules which can be applied in every circumstance;
- no one knows what benefits owning or using the IPRs will bring in future; and
- when you value IPRs, the unique qualities which give them their competitive edge mean that you cannot easily obtain information about sales or licences of similar IPR.
Page 5: "Unless IPRs help to create, maintain or increase cash flow, they may have no real value." And: "The value of the IPR will change over time."
Page 8 - how to value IP: "In theory, you should be able to value IPRs by looking at sales or licences of similar IPRs." But the publication quickly acknowledges that in practice, it is often difficult to use this method because:
- It is difficult to obtain information about other transactions – they are often kept confidential;
- There are sources of transaction data for various sectors, but they tend to give a wide range of figures for sales and licences which are only broadly comparable;
- Few transactions are sufficiently similar to allow a valid comparison. Your arrangements might differ from other arrangements in terms of: exclusivity; the payment structure; whether any technical or other support is provided; the territory; the economic climate and market conditions;
- You are unlikely to know whether, for instance, a lower royalty rate was agreed because the buyer/licensee brought some other advantage to the seller/licensor; and
- No two deals are really the same. You have to take into account unknowns such as the position of the parties, the characters of the people involved in the negotiations and the economic climate.
The IPO's parting shot:
"A licensee will not be willing to pay a generous royalty if the licence is restricted to a country where the law affords little protection for the IPR. In those circumstances others may (unlawfully) exploit the IPR even though the licensee is granted exclusive rights."
We couldn’t agree more.