Newspaper using my photo

JamesFromSomewhere

H,
I wasn't sure which section to post this in.
I took a picture last year which was uploaded to Mumsnet. Some newspapers took the thread and made a little story out of it, using my picture, online. They didn't ask for permission.

I don't want to share the picture, but it's a photo I took of a message someone else wrote for me, on a wall. It was a throw away photo, basically. Worthless when I took it and I didn't think the papers would pinch it.

I've been in contact with the sun and the mirror, who have agreed to pay me for the use of the image. An Australian news site (news.com.au) sent my invoice onto their lawyer, who is defending a payout. I've pasted the main parts of our discussion below.

-------

Lawyer:

Thank you for your email.​ For the purposes of this email, my client accepts your assertion that you​ are the sole author and owner of the relevant photograph.

My client does not accept there is any copyright in the relevant photograph.​ It is a photograph of a note posted to a wall and is not sufficiently original to qualify for copyright protection as an artistic work under Australian or UK copyright law.​ Even if that is wrong:

1.​ A note of this kind is unlikely to constitute​ a literary work but might amount to an artistic work, in which case your photograph of it is reproduction which infringes the copyrights of the person who wrote the note (noting that your email does not assert that you and the author of the note are one and the same); and

2.​ In any event, the contents of the note is the very thing reported in the relevant article and the use of the photograph​ is,​ consequently, a fair dealing for the​ purpose​ of reporting news.

In the circumstances, my client declines your demand for payment​ of any licensing fee.

Yours sincerely

-------

Me:

Thank you for getting back to me. This claim is solely about the photograph, not the note contained within. There is no claim of copyright regarding the note. I believe you bringing this up is to distract from the photograph itself, which this claim is clearly about.

Furthermore, the author of this article could have sourced their own, original photograph of this, instead of stealing mine.

Please can I draw your attention to this from your last email:

"My client does not accept there is any copyright in the relevant photograph."

I agree. My claim is not about any copyright IN the photograph, but of the photograph itself. As this photograph was taken by me, I am legally the sole owner of this photograph and it's associated copyright, which all photographs are afforded.

Copyright, Designs and Patents Act 1988 - section 1:

"(1)Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a)original literary, dramatic, musical or artistic works"

I am sorry that I am not entirely knowledgeable in Australian law, though I am sure it will be very similar. My photograph is my own artistic work. As a lawyer, I am sure you are fully aware that my case has a valid claim.

Working in media, I am sure your client knows that they can't just use photographs they find online without receiving express permission from the copyright owner.

I look forward to hearing back from you very soon.

------

Lawyer:

While my client does not concede UK law applies to publication of the photograph, the extract from section 1 of the UK Copyright legislation you have included in your email​ makes my point.​ There is no protection under that act without an "original literary, dramatic, musical or artistic works".​ Originality is a threshold requirement under both Australian and UK copyright legislation.​ If the work - including a photograph - isn't original then it doesn't qualify for copyright protection:​ ie, there is no intellectual property​ of any kind in which you can assert a right.

My client takes the view that a photograph of a note written by someone else and posted in a public place is not original.​ The person who wrote the note exercised all the skill and labour to be had in relation to it.​ Respectfully, all you did was point and shoot.​ My client's position remains unchanged.

Yours sincerely

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Do I have a leg to stand on? It's hard to argue with someone with legal training, haha. It's my picture but a note someone else made. In my view, it's my picture, so they a

Should owe me the money?

I'd appreciate some guidance.

Thank you

[Deleted User]

I'd move on and worry about something important.

JamesFromSomewhere

Deleted_User said:

I'd move on and worry about something important.

The sun paid me £250. Worth trying, don't you think?

couriervanman

£250 is that all you were robbed should have been at least £500........in all seriousness you've had a tickle for £250 be happy and move on  

Undervalued

JamesFromSomewhere said:

H,
I wasn't sure which section to post this in.
I took a picture last year which was uploaded to Mumsnet. Some newspapers took the thread and made a little story out of it, using my picture, online. They didn't ask for permission.

I don't want to share the picture, but it's a photo I took of a message someone else wrote for me, on a wall. It was a throw away photo, basically. Worthless when I took it and I didn't think the papers would pinch it.

I've been in contact with the sun and the mirror, who have agreed to pay me for the use of the image. An Australian news site (news.com.au) sent my invoice onto their lawyer, who is defending a payout. I've pasted the main parts of our discussion below.

-------

Lawyer:

Thank you for your email.​ For the purposes of this email, my client accepts your assertion that you​ are the sole author and owner of the relevant photograph.

My client does not accept there is any copyright in the relevant photograph.​ It is a photograph of a note posted to a wall and is not sufficiently original to qualify for copyright protection as an artistic work under Australian or UK copyright law.​ Even if that is wrong:

1.​ A note of this kind is unlikely to constitute​ a literary work but might amount to an artistic work, in which case your photograph of it is reproduction which infringes the copyrights of the person who wrote the note (noting that your email does not assert that you and the author of the note are one and the same); and

2.​ In any event, the contents of the note is the very thing reported in the relevant article and the use of the photograph​ is,​ consequently, a fair dealing for the​ purpose​ of reporting news.

In the circumstances, my client declines your demand for payment​ of any licensing fee.

Yours sincerely

-------

Me:

Thank you for getting back to me. This claim is solely about the photograph, not the note contained within. There is no claim of copyright regarding the note. I believe you bringing this up is to distract from the photograph itself, which this claim is clearly about.

Furthermore, the author of this article could have sourced their own, original photograph of this, instead of stealing mine.

Please can I draw your attention to this from your last email:

"My client does not accept there is any copyright in the relevant photograph."

I agree. My claim is not about any copyright IN the photograph, but of the photograph itself. As this photograph was taken by me, I am legally the sole owner of this photograph and it's associated copyright, which all photographs are afforded.

Copyright, Designs and Patents Act 1988 - section 1:

"(1)Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a)original literary, dramatic, musical or artistic works"

I am sorry that I am not entirely knowledgeable in Australian law, though I am sure it will be very similar. My photograph is my own artistic work. As a lawyer, I am sure you are fully aware that my case has a valid claim.

Working in media, I am sure your client knows that they can't just use photographs they find online without receiving express permission from the copyright owner.

I look forward to hearing back from you very soon.

------

Lawyer:

While my client does not concede UK law applies to publication of the photograph, the extract from section 1 of the UK Copyright legislation you have included in your email​ makes my point.​ There is no protection under that act without an "original literary, dramatic, musical or artistic works".​ Originality is a threshold requirement under both Australian and UK copyright legislation.​ If the work - including a photograph - isn't original then it doesn't qualify for copyright protection:​ ie, there is no intellectual property​ of any kind in which you can assert a right.

My client takes the view that a photograph of a note written by someone else and posted in a public place is not original.​ The person who wrote the note exercised all the skill and labour to be had in relation to it.​ Respectfully, all you did was point and shoot.​ My client's position remains unchanged.

Yours sincerely

------

Do I have a leg to stand on? It's hard to argue with someone with legal training, haha. It's my picture but a note someone else made. In my view, it's my picture, so they a

Should owe me the money?

I'd appreciate some guidance.

Thank you

This used to be an area of special interest to me, although I am getting rather out of date.

Anyway, as I see it.....

The important bit is whether the photograph of the artwork constitutes a new work for copyright purposes. The general understanding back in my day was that it does providing it is more than just a reprographic process.

In other words, if you had put the note (artwork) on a scanner or photocopier then the resulting image would not be a new work.

If you set up a technical camera and controlled the lighting etc to get the result you wanted then it almost certainly would have been a new work and therefore your copyright.

What you did was somewhere in the middle so gives them a nice grey area to go at if they want to be difficult!

If you think about it most museums rely on this to control the reproduction of their paintings. The majority of museum exhibits are out of copyright (70 years form the end of the year of the artist's death). However they have produced high quality photographs using technical skill and these enjoy a new copyright so they can control reproduction. If the painting is modern then it gets more complicated as it will also still be in copyright.

As far as I know what I have explained is generally accepted but has not been tested in a high enough court in the UK to set a precedent.

chrisbur

The following is my opinion as a photographer claiming no greater knowledge of copyright than someone who reads the occasional article in the photo press.
Having had a quick read of the Mumsnet terms and conditions you have given Mumsnet permission to do just about anything they want with this picture....
"By submitting User Content to us, simultaneously with such posting you automatically grant to us a worldwide, fully-paid, royalty-free, perpetual, irrevocable, non-exclusive, fully sublicensable, and transferable right and license to use, record, sell, lease, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, publish and otherwise exploit the User Content (in whole or in part) as Mumsnet, in its sole discretion, deems appropriate. "
Also
"No part of the site may be distributed or copied for any commercial purpose without express approval."
So if Mumsnet gave permission you can do nothing and if they did not then Mumsnet might have a claim and you also might but if it comes to a court case who knows?  Perhaps a lawyer who specialises in copyright but do you want to take it that far?
In my opinion you were lucky to get a couple of payments so not worth pushing any further.

I would be careful in future though about who you give rights to as the terms for Mumsnet are used for a lot of sites and in photo competitions to get virtually the same rights as copyright but without appearing to take your copyright.  

remote_control

I read a travel blog and the girl blogged about her income. She gets 1000 dollars a month from companies who steal images from her website and use them on their own. I think she uses another company to help her with it! She just got so sick of copyright infringement that she decided to fight each one. 
Here's the link:https://www.neverendingfootsteps.com/how-to-fund-travel-blog/

JamesFromSomewhere

 undervalued:

Thank you. That's along the lines of what I was thinking. It's not an exact reproduction and I could claim that I made that photo what it is. I'm sure they'll fight that but worth a go.

Chrisbur:

I thought the terms would be along those lines on MN but neither the sun, mirror or the Aussies have said anything about this so I'm assuming they haven't got MN's permission (perhaps they're happy with the publicity?).

Really I have nothing to lose putting my point across to them 1 last time, except for a few minutes work. Anyway, it's News Corp, who I have a strong dislike for. So if I can get any money from them, then that's good, right? If I don't get anywhere with the next email then I'll move on with my life.

Thank you both for your opinions.

JamesFromSomewhere

remote_control said:

I read a travel blog and the girl blogged about her income. She gets 1000 dollars a month from companies who steal images from her website and use them on their own. I think she uses another company to help her with it! She just got so sick of copyright infringement that she decided to fight each one. 
Here's the link:https://www.neverendingfootsteps.com/how-to-fund-travel-blog/

Brilliant, I'll take a look. I think that might be a little different as her photos will be travelling photos, easy to claim as her own copyright. Cheers.

JamesFromSomewhere

One more thing, I asked that my photo be removed from their website. I got this back:

"I confirm my client has removed the relevant photograph as a courtesy to you.​ I trust this resolves your complaint."
Surely if I can't claim copyright, I have no right to the photo being taken down? By them taking it down, it makes it look like they agree I do own it and it's respective copyright.

Undervalued

Mickey666 said:

IANAL but my understanding is that the simple physical act of taking a photo gives the photo taker the automatic copyright regardless of the content of the photo.  There are no 'creative' or 'artistic' considerations to copyright, it's a simple 'creation' thing - you made it, you own the copyright.

Also, you can ignore all the lawyer-speak nonsense about "my client takes the view that . . . " because it's legally meaningless.  Their client can take whatever view they like about anything but it doesn't affect the law in any way.

I think the OP is in the right and the fact that the newspaper has involved their lawyers at all is testament to that.  Of course, the flip side to all this is that everyone knows, or should know, that anything posted online effectively becomes public property and open to this sort of abuse.  If you can be bothered to chase down such copying of your own photos posted online then go for it, the law is on your side.

Almost but not quite.

See my earlier post, the normal interpretation is that it needs to be more than just a simple reprographic process. The photographer needs some "creative" input but it can be absolutely minimal. As I say that was the accepted normal interpretation 15 plus years ago and I am not aware of any precedent setting legal cases in the UK.