I’m a journalist. I’ve been a journalist a long time. It’s a bit of an unforgiving business at times but most of the journalists I know do their best to be honourable under duress.
The internet has raised a lot of issues, not least that of people taking content from media companies without authorisation. They hate it which is why we have ACTA, SOPA, PIPA and a host of other acronyms aimed at stopping people pinching stuff from big corporations (arguably with the potential of doing huge damage to the web through the ham fistedness with which the legislation has been drafted).
However some big corporations are less forthcoming when they’re caught pinching stuff from the likes of you and me. As I’ve now made clear on my ‘about’ I’m a fan of Creative Commons type licenses. If you’re a blogger or I’ve written about something you care about and you want to borrow something in a good cause or simply in the spirit of a wider web you can but ask. If you’re not making money I won’t ask for any. Call it the joy of being part of the blogsphere.
However if you’re a million selling newspaper owned by a couple of billionaire brothers living in tax-exile in a bat-infested castle on their own island off the coast of France I would like to reach a commercial understanding.
This week a couple of newspapers ‘borrowed’ a photo of Mary-Ann Ochota from this site without asking. Mary Ann got caught up in a bit of a row about Time Team, a programme which she co-presents. In her defence I should say that she is really good company, a very decent soul and, sickeningly, proof that you can have both looks and brains.
One of the papers, not one I read often, was remarkably honourable about their error and settled very quickly. The other was The Daily Telegraph. I proposed a settlement along the lines agreed with their competitor. Instead I got this reply from their Deputy Picture Editor Matthew Fearn:
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.
Now I have to say I thought this was a bit rich and, as I doubted it had been legalled by the Telegraph, wrote to their legal department to suggest they make a donation to Leigh Primary School in Kent. Meanwhile I thought I’d help Matthew get to grips with the concept of borrowing other people’s stuff without permission for use in a commercial enterprise. To do so I thought it best to recast his kind letter in a different context to see how it might sound.
Deputy Picture Editor
The Daily Telegraph
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.
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?
I think that sounds perfectly fine, however I somehow doubt Westminster Magistrates would agree. Perhaps they own Astons. There’s no justice.