Flickr the front page! or An Independent breach of copyright?
UPDATED 201001182239: The Independent has apparently seen sense. The British Journal of Photography is reporting that Jimmy Leach told them “…he has apologised to Zabulis ‘for our errors, which were not malicious in intent.’” Peter Zabulis’ invoice for £100 will now be paid, and I’m sure the Independent (and the FCO’s soon-to-be Head of Digital Engagement!) will want to close the book on this. In fairness to both the Indy and Leach, the speed with which they responded does them credit – but the fact it took adverse public comment to make them respond is still regrettable.
ORIGINAL POST:
It’s been a bad time for the Independent recently
Dealing with serious financial problems, up for sale to a Russian oligarch (who’s rumoured to want to turn it into a freesheet), and worst of all under threat of imminent Rod Liddle.
Still, there’s always ways to make things worse – like acquiring a reputation for copyright theft.
It must have seemed like a good idea at the time, especially for a publication needing to watch the pennies: Use the API from online photo-sharing site Flickr to add topical slideshows to your website, at no cost to the paper.
But in what may be a glaring example of RTFM, the Independent apparently failed to filter the resulting slideshow to remove photos which were “All rights reserved”.
The offending slideshow
Flickr user Peter Zabulis was surprised to find one of his photographs featured on the Independent’s website, given he had marked it “All rights reserved”. His profile makes clear he’s a former freelance photographer, and says:
If you would like either a digital copy or an actual print of any of my prints than send me a message, please do not use any of my images without my prior permission.
Curiously, the page he found his photo on no-longer features a Flickr slideshow but here’s what it looked like:
Zabulis duly e-mailed the Independent, pointing out the problem:
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.
It was at this point that what may have been a minor technical mistake (albeit one that exposed the Independent to some cost) was turned into a more serious problem. The Independent responded:
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.
By this point, anybody familiar with IP law is wincing (although everyone familiar with corporate-executive digital media types is probably grinning wryly). A couple more messages followed – including Zabulis helpfully quoting a large chunk of the Flickr API Terms of Service – before the Independent finally came back with:
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.
On the basis of this, I’m considering writing to the Independent and offering to run refresher courses on copyright…
Zabulis had already made it clear that if he didn’t get a satisfactory response – i.e. payment for the use of his image – by 15 January, he would go public. He gave the Independent a final opportunity to comply (apparently to no response) and then posted the details and the full exchange on his Flickr page.
Sadly for the Independent, it doesn’t look like they’ve a leg to stand on here. The Flickr API’s Terms of Service are perfectly clear on this point:
a. You shall:
- 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.
- Comply with any other terms and conditions a user has attached to his or her photo. For example, if a user marks a photo as “private” after using your service, your application must reflect those changes as soon as reasonably possible. If your application has any cached copies of photos that have become “private,” you must remove as soon as reasonably possible.
Emphasis added
It’s not as if the Independent could rely on an exception from copyright restrictions – fair dealing (there is no “fair use” in UK law) does not apply to photographs – and they can’t plead that this is not a known issue.
In fairness to the Independent, I know from personal experience of advising on the commercial use of Creative Commons licensed images that people often fail to grasp the concepts involved, but what has made a possible mistake into a problem is the way that they responded – by trying to brazen or bluff out the situation, they’ve now attracted a adverse publicity.
There is a lesson here: picture use fees are cheap. Adverse publicity is free!
And finally, an interesting codicil. According to PeteZab, the response from the Independent was from Jimmy Leach, the Independent’s Editorial Director of Digital. Leach is due to join the Foreign and Commonwealth Office in February as their Head of Digital Engagement. As the FCO helpfully tells us:
His previous roles have included Head of Digital Communications for Prime Ministers Tony Blair and Gordon Brown…
It all starts to become clear…
Posted on 2010/01/17, in Uncategorized and tagged Journalism, Legal, Media, The Independent, Uncategorized. Bookmark the permalink. 9 Comments.
Fair dealing applies to all copyrighted works, including photographs. Whether the legal tests for fair dealing were met in this case is another question.
You are failing to distinguish between duplicating and hosting the photograph on the newspaper’s own site and issuing a Flickr API call for Flickr itself to display the photograph. I would chalk this up to technical ignorance.
Joe, what you chalk things up to is a matter for you, but there are some significant issues with your comment.
Firstly, as to fair dealing, I suspect you are making the (incorrect) assumption that the law of your home jurisdiction (Ontario, Canada?) applies to or is the same as that in this case. In the UK the relevant legal provision is s.30 of the Copyright, Designs and Patents Act 1988. Photographs are excluded from the s.30(2) exemption for reporting of current events, and the only other applicable type of fair dealing (critical review; s.30(1)) is prima facie not what the Independent was engaged in.
Secondly, as to “technical ignorance”, I’m perfectly well aware of the technical differences between hosting and API use. Indeed, the legal implications of hosting, hotlinking, framing, embedding widgets, and various other techniques have been the subject of argument by IP practitioners and academics for some years. My personal (and professional) view is that the substance of the act is what the court would look to. Obviously, your position is one of several lines of argument that could be raised by a Defendant to an action for copyright infringement, but I am not persuaded that they would be successful.
The CDPA 1988 provides for a variety of “restricted acts” in respect of copyright works. These include public display of works, and communicating works to the public, in addition to the obvious making copies and issuing copies.
It would clearly be a copyright infringement if the Independent had copied an image, but it is arguable that what they did was issue copies, and strongly arguable that they engaged in either public display of the work or communication of the work to the public (in each case without the consent of the rights holder). Any of those would be sufficient to make out copyright infringement.
It would be perfectly reasonable to say that the application of these restricted acts to digital mediums is untested. In the UK context – which this is – the question would probably need to be referred to the European Court of Justice, and the sheer cost involved makes it unlikely that this will happen, leaving the law unclear.
Preliminary relief has been obtained in several European jurisdictions – including, back in the 1990s, in Scotland – to prevent deep linking. I don’t propose to go through the reason adopted in those decisions, but it is difficult to see how (if deep linking constitutes infringement) the actions of the Independent here did not infringe.
You know, I’m starting to think he shouldn’t have chalked it up to technical ignorance.
Thanks for the insight and analysis.
It’s my understanding of American Fair use that inline linking by persons in the USA is not as clear a copyright violation as it is in the UK. To my knowledge we don’t have the “public display of the work or communication of the work to the public” bit in our copyright laws.
It’s interesting to note that Flickr will generally *not* come to your defense on cases like this. There is a popular website called Flickriver that uses the API to essentially put another skin around your photos. The photos are always hotlinked from Flickr, never stored on the FlickrRiver servers. Many people were predictably upset by this and Flickr has come out stating they support that use and that if you don’t want your images being displayed on outside websites, you must opt-out of the Flickr API. See: http://www.flickr.com/help/forum/en-us/115879/#reply737766
I’d agree with you on the US position – from my understanding, the Federal District Courts have specifically held deep linking (by search engines) to fall within fair use, and there’s no case directly on point (hotlinking).
FWIW, Flickr’s position is perfectly reasonable; it’s really no different from someone objecting to their tweets being displayed in a Twitter fall, and Twitter responding that people have the option to lock their stream. It would be nice if there was functionality to deny API use on a per-dev basis, but you can see why this is an unattractive option for Flickr.
Agreed it would be technically difficult to implement a user-level API whitelist but I think it would be the right thing to do. Unfortunately the current owners of Flickr aren’t interested in the right thing, they’re interested in making money. The founders of Flickr understood there needed to be a strong dialogue with their users to improve the service, and would frequently make the right decision instead of the decision that made the most sense financially. I’m not seeing that out of Yahoo!
I pointed out that Flickr won’t defend you because so many people on Flickr were calling for Flickr to help Peter.
My own stance on the issue has changed in the 5 years I’ve been a Flickr member. I truly believe copyright is in its death throes as we know it and I just can’t expend the mental energy worrying over it every second as it applies to my own work. It’s fun watching others debate it thought! =)
Thanks again.
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