Breach of Copyright - The Independent
**** Update - This issue has now been resolved, payment has been agreed and an apology received - comments option now closed ****
The Independent is a national and commercial newspaper in the UK.
On the 5 – 6 January 2010 they used the Flickr API to search for and display images of snow scenes in the UK – amongst those images displayed was one of mine which is clearly marked on Flickr as “all rights reserved”. They did not seek my permission for the use of my image. I am assuming they used the API without applying a filter on the licence type, this also means that other UK photographers may have had their copyrighted work used without permission; might be worth checking if you had any refers from the Independent on those days.
Below, is a summary of the messages that have been exchanged between myself and Jimmy Leach the Editorial Director for Digital at The Independent; I found their initial reply both surprising and alarming.
Comments and faves
David Rabjohns, maximumdembo, Stan160, austenhaines, and 209 other people added this photo to their favorites.
PeteZab (41 months ago)
Tuesday, January 05, 2010 6:28 PM
Dear Independent,
I notice you're using one of my images without any acknowledgement (or permission) on your website, the link is as follows,
www.independent.co.uk/news/uk/home-news/snow- in-the-uk-se...
The image is on my Flickr site at the following address and is marked as ©All rights reserved.
www.flickr.com/photos/petezab/4243266763/
I'm assuming this is an oversight; I am quite happy for you to use my image but this is, naturally, subject to the appropriate payment rate. I look forward to your response in due course.
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Reply from The Independent, Sent: Thursday, January 07, 2010 5:46 PM
We took a stream from Flickr which is, as you know, a photo-sharing website. The legal assumption, therefore, is that you were not asserting your copyright in that arena. We did not take the photo from Flickr, nor present it as anything other than as it is shown there.
I do no consider, therefore, that any copyright has been breached or any payment due.
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My second response, Sent: Thursday, January 07, 2010 7:47 PM
I'm sorry but you are incorrect, I think you've either misunderstood or not read the conditions associated with using the Flickr API.
www.flickr.com/services/api/tos/
I draw you attention specifically to para 1.a.ii,
Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn't own the images - Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr's provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners' requirements and restrictions, which may include "all rights reserved" notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners' requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner. You can read more about this here: www.creativecommons.org or www.flickr.com/creativecommons.
My image was and still is clearly marked as "all rights reserved"; you have used the image on a commercial website without my permission and by doing so, have also abused the Terms of Use you agreed to when using the Flickr API.
I look forward to your comments.
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The Independent reply Sent: Friday, January 08, 2010 11:02 AM
I understand what you mean, but I think you are misreading it. I'll now have to pass this to the legal department for a judgement call.
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Further response from me, Sent: 08/01/2010 17:02 GMT
I think you’ll find I’m not misreading anything.
I’m amazed that you are still failing to grasp the concept of both how the Flickr API works and its terms of use in relation to copyrighted material.
In the circumstances, I’m also going to have to seek legal advice and if I've not had a response from you within the next 7 days I will commence legal proceedings. In the meantime I will report The Independent to Flickr for abusing the Terms of Service it agreed to on the Flickr API.
The details of this dispute will also be published on my Flickr site (photostream) so other photographers become aware of how The Independent is using copyrighted material.
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The Independent reply on Sent: Friday, January 08, 2010 5:34 PM
The photostream from Flickr was talen down days ago and I'd be grateful if you'd wait for a considered response before posting anything. A newspaper HAS to go through its legal department on issues such as this, its the way they work as all content has possible legal and copyright issues.
If you still disagree with us then we , and you, can proceed from there.
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My reply Sent: Friday, January 08, 2010 5:40 PM
Fair enough, I'll delay publication for 7 days. That should give you sufficient time to consult your legal people.
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The Independent Sent: Tuesday, January 12, 2010 4:32 PM
I don't think there is much I can add. We only included what you had already done and what was publicly available on Flickr and streamed it for less than a day, using the API for its purpose. We didn't change anything you had done or any notices you had on your photos. No one could access the photos other than through the Flickr site. I am therefore puzzled about what you think we may have done wrong or if anything what your loss or claim would be.
I think it best if we wait to hear from you when you have decided what you feel is your claim and I will consider it and if necessary get legal advice.
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Me, getting impatient, Sent: Tuesday, January 12, 2010 6:17 PM
I'm beginning to lose patience here - I thought your previous e-mail said you were seeking advise from your legal department, has this not been done?
I've already stated on numerous occasions that you used an image that is clearly marked as "all rights reserved" without permission. Using the Flickr API does not exempt you from seeking permission to use that image and the Flickr API Terms of Service are crystal clear on your role as a user of the photostream,
"Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr's provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners' requirements and restrictions, which may include "all rights reserved" notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners' requirements or restrictions"
Did you approach me about the use of this image? The answer is clearly no. As well as breaching my copyright you also abused The Flickr API Terms of Service.
Therefore the only way to resolve this dispute is to apologise for the breach of copyright and agree to pay for the use of the image.
My original deadline of Friday (15/1/10) remains, if there is no resolution by that date I will follow the actions I previously outlined.
There has been no further contact from The Independent.
sempel (41 months ago)
that's stealing! i wish you all the best pete.
Amanda Hayler (not on much, sorry) [deleted] (41 months ago)
Totally taking the p*ss, aren't they? I hope you get somewhere with this. Please let us know of further developments.
--
Seen in my contacts' photos. ( ?² )
lostlew (41 months ago)
I've not looked into the terms of the API ect, but if it is as you say then you certainly have a case,,good luck,,
Gareth Harper (41 months ago)
This is interesting. I'd say The Independent thought they had found a free source of content. Or perhaps they have screwed up and not picked the right license.
Anyway what you should have done from the off was send them a polite e-mail and an invoice.
If you don't get payment, you need to be polite and give the 'user' every reasonable opportunity to pay. Oh and sometimes it's a good idea to have a chat over the phone. If you fail to get payment you can go to the Small Claims Court.
The legal assumption, therefore, is that you were not asserting your copyright in that arena.
Perhaps it's the first time they have done this? They shouldn't be assuming anything.
I'll now have to pass this to the legal department for a judgement call.
Yup it really does look like they made an assumption.
I think it best if we wait to hear from you when you have decided what you feel is your claim and I will consider it and if necessary get legal advice.
Here they ask you for an invoice. Did you send one? If not you just missed your payment.
Considering the tone of your communications, and that you appear to fail to send an invoice, even when invited to do so, well I don't think you will hear from them again. Time is money, they have work to do. Live and learn, let this one go.
that's stealing!
Sempel, I sure Pete still has his photo, so therefore no theft has taken place.
David Rabjohns (41 months ago)
Jesus - Thats really crooked why not just fess up and pay up ?
I think everyone should mark it as a fave as a sign of protest !!
Walwyn (41 months ago)
Private Eye was saying the other week that the Independent is almost broke.
pamcrowley77 (41 months ago)
Please let us know what happens ..... and Good Luck
Jaybird456 (41 months ago)
Pete, I volunteer for a not-for-profit dispute resolution service called the Centre for Justice. They settle legal claims through a quick, fair and inexpensive process, which combines mediation and arbitration.
Feel free to give them call www,centreforjustice.org
maximumdembo (41 months ago)
i admire your balls pete. ill be interested to see if you follow this up.
alanrharris53 (41 months ago)
Good luck Pete. I would just invoice them next.
Amanda Hayler (not on much, sorry) [deleted] (41 months ago)
I'd send an invoice prompto
--
Seen in my contacts' photos. ( ?² )
3 & 2/3-quitting flickr (41 months ago)
stand up for you rights!!!
bravo
J. W. Manning Photography (41 months ago)
Stealing in this case, is stealing rights, not photos, not images. Rights are everyone's legal ownership of content, media, ideas, and anything else they may have created. Therefore, this is not an issue of them going into his house and stealing a photo, they are using a photo of his and violating his right to require permission to use before it's used. Anyone who thinks this is a lost cause obviously does not appreciate the rights we have.
Black Shadow Photography (41 months ago)
Good luck with this.
If you are wanting to get this story out to more people I suggest you check out www.aphotoeditor.com copyrightaction.com/blog/name-and-shame and The British Journal of Photography. This will spread through the photographic community reasonably quickly.
If you were feeling a little nasty you might like to alert some of The Independent's competitors...
amonacanindian (41 months ago)
Very interesting Peter, best of luck .
miseryxchord (41 months ago)
Very much like having a conversation with a cinderblock, isn't it? Good luck on this. I agree with the others who suggested sending an invoice.
Jelltex (41 months ago)
How many other pictures have they 'used' without the copyright owner's permission. Take this all the way!
Kinderwurst (41 months ago)
interesting
pedrik (41 months ago)
Unfortunately I think Flickr (Yahoo) is also to blame here. They should be controlling these rules much more actively and pursuying the copyright breachers. I am sure that if someone posted an image belonging to the Independent on their stream and the Independent complained the poster would be punished by Flickr right away.
ELAINE 60 (41 months ago)
well doen Pete stick to your guns and make the b,,,,,ds pay for what they took,
because the photos are open to the public, which they are calling them selves,
they seem to think they can take who ever's photo they wish, the only thing to do with this is copyright all your photos, at least it will have your name on to show its yours,
If any of our Photos thats in Flicker, should all b water marked and agree with above Flicker should be protecting us us,
I would expect the same as you, payment for my photo, as you never gave them permission to use to borrow, or what ever they call it,
I call it THEIFT, if you took anything of theirs and published it with out permission you be up in court,
go for it Pete
Dave 2008 (41 months ago)
The newspaper industry, virtually more than any other, must be fully aware of the laws regarding copyright!
Seems to me you have a excellent case for recompense.
I would strongly recommend everybody to disable the Flickr API option in your account. Go to 'Your Account >Privacy & Permissions> Hide your stuff from public searches'.
It just seems to me to be a gateway to photo theft, as there has been many abuses regarding API.
Everybody should fave this picture and try to get it on Explore.
Hope you get the result your after Pete. Keep us all informed.
Gareth Harper (41 months ago)
I'll just repeat what I commented before.
The Independent - I think it best if we wait to hear from you when you have decided what you feel is your claim and I will consider it and if necessary get legal advice.
Basically that's a request for an invoice. 'Considering it' I would take to mean that if it is reasonable it will be paid.
My advice is that if this sort of thing happens to you make sure that your first e-mail or letter includes an invoice. No invoice = no payment.
I call it THEIFT
Call it theft (theift?) if you want Blonde 57, but in reality it is a violation of copyright.
G... A Happy Amateur... (41 months ago)
The thing that I noticed from the original link you sent me was that the page was for 'SUBMISSIONS' to the paper of your snowy pictures. If you did not SUBMIT it then it is clear to me that they have taken your image illegally. Send an invoice asap with a note to say that it was delayed due to you awaiting legal advice.
I think that Yahoo/Flickr should be notified and that they should lend their support, if only by stating their own views on their sites copyright.
As a pro account member here, you have paid for a service and that should include a little support in cases of copyright breach.
Good luck. Kick ass!
G.
jocelyne_hebert (41 months ago)
Good luck Pete!..............Happy weekend!...............jo
The Avangelist :: Andy Parker (41 months ago)
Actually guy, whilst I appreciate your post, you are not entirely accurate on this. There is no breach. It states that you cannot publish the images. The definition of this is to extract images from Flickr and host them on your own server. The API allows you to display images via the Flickr stream, it provides the ability to display images without the requirement of hosting the images yourself. This is not illegal to do so as they are not being re-published by a third party they are being called by the API.
In honesty, to take the Independant to small claims court for breach of copyright, you are only likely to get a very small three figure sum - if you are lucky.
Of course if you win, you can sell the story to the guardian who will then proceed to have a field day.
I will be watching this post with avid interest.
fiona bird (41 months ago)
I ditto The Avangelist's final comment
tugwilson (41 months ago)
Have you reported the abuse of the API to Flickr?
See: www.flickr.com/help/with/api/
G... A Happy Amateur... (41 months ago)
We'll I ain't no lawyer and I ain't very ejumacated but, legal or not, it stinks!
What happened to professionalism and respect?
The fact remains that the paper asked for submissions. This image was not submitted, it was taken. That is not fair play in my book. End of story in my book.
G.
jakerome (41 months ago)
They definitely broke Flickr rules, that much is clear. The copyright breach is less clear, since they could make a claim to fair use. they didn't actually copy it (only linked to, even if it was embedded), it was newsworthy. Working against them is that they showed the image at a large size, and they may have hand-picked the image (they would have a better fair use/ fair dealing case if it was displayed via a search). Now, that's all true in the US. I'm not really familiar with British law, so don't take my advice!
Black Shadow Photography has been battling Heineken for over a year on a similar issue. You may ask him if he's been successful as of yet.
Good luck.
tugwilson (41 months ago)
I think the copy/link issue is a red herring.
The Independent web site is a "news sharing site" in exactly the same sense that Flickr is a "photo sharing site" - If I started trawling their site and posted framed links of their news stories on one of my sites I think they would have something to say about it pretty sharpish.
They seem to have used your copyrighted material without your permission and you can take action to remedy that.
They also seem to have broken the terms of Use of the Flickr API. You can't do anything about that but Flickr can if you complain to them.
matranson (41 months ago)
Your legal team in this case is Flickr. Make sure they know and take it from there. Its pretty outrageous that The Independent have done this - and I can't believe they seem so indifferent towards you. Good luck!
PeteZab (41 months ago)
I'd just like to thank everybody who has spent time reading this post and adding comments and offering advice. It's good to know that people support my point of view; I wonder if The Independent have read it yet?
One thing I had hoped for, is that this might have drawn out other photographers that were affected, I can't be the only one - there's still time for that.
I'll keep you all updated as to how this progresses.
Eleven Eight (41 months ago)
Hello,
I'm the news editor for the British Journal of Photography. We've seen this type of theft happen before by newspapers and other organisations (such as Heineken). I will make sure to contact The Independent on Monday morning for clarification on what has happened, and mainly on why they don't think they did something wrong.
Olivier Laurent
News Editor
British Journal of Photography
Sigi K ॐ (41 months ago)
Good Heaven's this is shocking. It may be worth considering whether our images on flickr are in fact safe and if not why bother to continue posting.
It's a disgrace and I wish you well.
mike(toons) (41 months ago)
Best wishes in your fight for justice and payment.
How often does this go on but un-noticed? Did you spot your photo on the Independent website or did someone else alert you?
DaveWilsonPhotography (41 months ago)
I'm stunned! I would have thought that a newpaper like the Independent (which was my daily when I lived in the UK partly due to the high quality of its photography) would have been above this blatant copyright theft. I wish you luck!
PeteZab (41 months ago)
Gareth Harper (41 months ago)
I wonder if The Independent have read it yet?
Frankly I'm surprised you still haven't taken this down. I'm beginning to feel sorry for The Independent.
After all they invited you to submit an invoice, which you decided to ignore and instead choose to slag them off in public.
I'll say it again, no invoice = no payment. How difficult is it?
matranson (41 months ago)
@Gareth Harper:
The dispute between Pete and The Independent paying him is just part of the issue. You talk about the newspaper as if its a little old man who didn't know which button to click on a website.
The Independent is one of the UK's major newspapers and they knew exactly what they were doing and now they're being made an example of. Someone at the paper had a chance to settle it quickly and quietly, if that's what they wanted...
Gareth Harper (41 months ago)
Someone at the paper had a chance to settle it quickly and quietly, if that's what they wanted...
Oh come on. Read the e-mail exchange. I think it best if we wait to hear from you when you have decided what you feel is your claim and I will consider it and if necessary get legal advice.
It's simple, if you want paid submit an invoice. There is no point in starting an online slagging match when you haven't even attempted the obvious and first thing that you should do in these situations, and that is submit and invoice.
PeteZab (41 months ago)
Slimeface (41 months ago)
This practice has been going on for awhile now. I know because I have found my flickr images on several online news sites (both local and national) over the past 3 years. I refrain from mentioning names, as this only brings them more undeserved attention.
I applaud you for your efforts and if more photographers contested this, as you have so articulately and aggressively done, it would certainly increase awareness to this problem and could (will) make a difference.
Just a couple of footnotes... I don't post my 'special' work or many of my portraits for this reason, and the images I do post are mostly of low quality resolutions. This doesn't make anything right, but I'm too busy to fight about it. Again I thank you for your stance on this!
Sorry for the long winded comment but I wanted to tell you I found your flickr stream via twitter on an RT. I will add you, and continue following your progress! @Slimeface
Gareth Harper (41 months ago)
We all have to learn somehow. I'm no expert, but I have had similar issues. The way I look at it now is this,
Contact the offender and send an invoice, make it clear that the use is unauthorised and a breach of copyright.
Be polite, persistent, give the 'offender' every opportunity to pay. It's import that you do this, as if you want to take further action you want to be seen to be the reasonable one.
If all else fails consider legal action. The Small Claims court is the obvious place to go. It's easy and in Scotland (I don't know the cost in England) will only cost you 40 quid to submit a claim. Also a wee trick here is to make sure that the court understands that the contract should have been with you, that way you can call the 'offender' to your local court, not the other way round.
However, for me, if you want to take legal action you don't go public.
But without submitting an invoice I don't see how you can go to the small claims court.
And I suspect if you had submitted a reasonable invoice The Independent might just have settled. They did after all say they would consider your claim.
matranson (41 months ago)
@Gareth Harper
There is no point in starting an online slagging match
As I said. Its bigger than that. If Pete hadn't noticed his photo, they'd be using it without permission, along with (presumably) other people's work. That's what this is about, not the money. I think perhaps you're missing the point.
Gareth Harper (41 months ago)
I think perhaps you're missing the point.
Do we know if The Independent make a habit of this? Or did they make a mistake? If The Independent do this on a regular basis with 'all rights reserved' material, then yes you have a point matranson. Does anybody have the answer.
Often the way to spot this kind of use is to check your stats. Unless that is API use comes under 'unkown source'
So does API use show in Flickr stats?
PeteZab (41 months ago)
As regards API use, it just shows flickr.com as the referrer - which makes sense as the stream is on Flickr.
Tomb Land (41 months ago)
i agree with matranson.
It's very concerning what has happened here. Keep us updated please.
tugwilson (41 months ago)
Why this is important:
The Independent has gone to the trouble of getting a commercial application key from Flickr and the expense of getting somebody to write code which uses that key and the API to populate parts of its web site (which is a commercial entity which generates revenue via advertising).
The Independent is using that mechanism to source images for uses which are not allowed by the licensing terms of the copyright owner.
The Independent is is doing this in such a way that the copyright owner is highly unlikely to notice.
When somebody does notice the executive in charge plays the "butter wouldn't melt in my mouth" act and, when pressed, offers to consider payment for a single image from the stream that he has been using. The fee is likely to be nominal.
It's inconceivable that a newspaper executive is unaware of the rights issues involved with images. The entire industry is riven with arguments about the use of "free content" and "citizen journalism". He knows full well that what he is doing is wrong.
If he gets away with paying a fiver for one image out of the far larger number he's used without permission then he will think he's had a great deal and will continure with this behaviour.
In this circumstance settling quietly does a disservice to both the people who have had their images used without permission and the people whose livelihood depends on selling images to newspapers.
SDMichael (41 months ago)
Newpapers deal with photo agencies frequently and there is no way that they would be unfamiliar with the legal ramifications of using a copyrighted photo without permission. They were just hoping you wouldn't notice. I say take them to the cleaners!