Reproduced without permission

Three years ago, almost to the day, Liverpool-based web developer Thom Shannon took some amusing photos of himself and his friends posing with their faces partially obscured by banknotes. The effect, as you can see from the example below (reproduced with permission) is to create an eerie merging of the face on the note with the human being in the picture. I've no idea who thought of it first, but it has been doing the rounds for some time - see, for example, this how-to guide from June 2007. Anyway, Thom posted the pictures to his Flickr album and shared it with other like-minded jokers in a group called Money Shots. There are several such groups out there: here's another.

According to the Mail, these images are now "littering the web" in what is "the latest craze". They seem to have lifted the story - along with the pictures - from the blog Intense Zone, which ran them last week (without permission) in a post about "a new craze going around the world". The Mail's version - minimally altered - appeared on their website on Tuesday. Thus far, a typical story of the mainstream media discovering a trend years after it started and imagining it was new. But then Shannon, alerted via a friend on Twitter, took exception to this uncredited use of his photograph, for which he, after all, holds the copyright. He left an indignant comment below the article:

You did not ask permission to use any of my photos and haven't even credited me. I do not want my face appearing on this website and neither do my friends, please remove them immediately.

They didn't.

The photographs have since appeared in the Telegraph and the Sun, the Telegraph initially crediting them to Intense Zone. Thom Shannon spent much of this morning trying to contact the organisations concerned. The Telegraph have complied with his request for a picture credit (he did not ask for payment) and he has spoken to someone at the Sun. The Mail, so far, have ignored his protestations.

Thom has no idea how Intense Zone got hold of the pictures, though he tells me that "they've been used around the web a bit but most people have made some effort to credit them clearly." As for the unauthorised reproduction of them in the newspapers, he says that he is "annoyed that a paper like the Mail can just get away with it," adding that "I have no practical recourse, and legal action is out of the question."

Writing about the affair on his blog, Charlie Beckett of the think-tank POLIS couldn't see much problem. He even congratulated the Mail on not deleting the complaints from Thom Shannon and several others who pointed out the blatant copyright violation. He argues that people published the photos on the Internet with no thought of financial gain and, presumably, because they wanted people to see them. The pictures served merely to illustrate a "slight" news story that was worth reporting; and anyway, some of those featured might be happy for their funny photos to be shared with millions of others via the good offices of the Daily Mail.

Beckett spectacularly misses the point (though perhaps he is just being provocative) when he writes:

If they had wanted privacy then they should have changed their security settings. If they wanted payment then a little note or code would have made that clear...Generally, the principle online has always been that sharing is good. So what if the Mail made money out of it? Isn’t the point of open source and creative commons that we all benefit from the Internet’s link economy?

Let's take these points in turn.

Just because a photo is on the Internet doesn't mean it is supposed to be publicly visible. Most of the photography to be found on Flickr and tumblr albums are put up for the benefit of the friends and family of the people who took them. Even though they're often publicly accessible via search engines they rarely circulate far. That's why many people imagine they can display their personal photos in virtual anonymity, and why incautious postings can come back to haunt people who have a brush with fame or notoriety. An embarrassing photo or email, intended to be confined to a small group of friends (or even sent to just one other person) can go viral, and sooner or later will reach a journalist looking to fill space. In the case of Amanda Knox, it may even have sent her to prison.

In any case, this is not merely, or even primarily, about "privacy". Beckett's claim is tantamount to saying that if you don't want your house burgled you should install an alarm: good advice, no doubt, but no excuse for theft.

As for the right to re-use the images, there was a copyright notice (allowing limited non-commercial use) on Shannon's original Flickr page. Thom has now reposted the original pictures with digital watermarks and a message that reads "I've never felt I needed to use watermarks before but having the Daily Mail rip off my photos without any credits and completely ignore my requests for them to remove them has bothered me."

Beckett asks "at what point does material in the public domain become copyright?" There's a simple answer to that: a photograph becomes copyright the moment it is taken, a piece of writing the moment it is written. You retain the copyright even of personal letters you have sent to other people, which they cannot legally republish without your permission. Just because something is widely shared on the Web doesn't mean it is "in the public domain". A custom of fair use, often (but not always) set out in a Creative Commons licence, has emerged online; bloggers, of course, quote extensively from each others posts, generally without causing upset. But that's no more than a custom. It doesn't alter the law of copyright.

The re-use of photos even online is a controversial area. It's a good principle to seek permission for images you intend to re-use, although in practice the spread of images is often impossible to police; indeed, the original copyright holder may be difficult to trace. There was a good discussion of this issue on Pandora Blake's blog in the summer, prompted by her discovery that one of her watermarked spanking photographs had resurfaced on someone else's Tumblr page. She was able to trace the trail back no fewer than 22 "reblogs" to her original image, and comments:

I very nearly decided not to bother. After all, I'm not making money off these images. But I persisted; it's a point of principle, especially when I'm not the only person whose copyrighted material is being stolen. By the time I'd written an email to the support team reporting the infringement, I'd worked up a nice head of steam, and felt thoroughly justified.

Even so, there's surely an important distinction, morally if not legally, between social networking sites and the websites maintained by large profit-driven organisations. As Will Sturgeon notes, the line is often crossed, "the moment the tabloids start monetising this content". Several companies that have recently become obsessed with protecting their own copyright take a cavalier approach to material discovered on Facebook or a blog. The Mail, incidentally, is one of the worst offenders. As long ago as 2001, it was taking material from websites and republishing it without permission - in one case, after the copyright owner had explicitly refused to allow publication, even for a fee. Last year, the Mail on Sunday decided to run a "blog of the week" feature, reproducing entire blogposts in its print edition, without payment and even without informing copyright-holders of what it had done.

When one such blogger, Johnny B, complained the MoS agreed to pay him for his article. But their reply also contained this revealing comment:

We generally take the view that blogs published on the internet have already been placed in the public domain by their authors and, in case of amateur writers, most people are happy to have their work recognised and displayed to a wider audience.

Even if this is true, it doesn't alter the fact of copyright violation. As the digital rights expert Mathias Klang pointed out at the time, what is strange about such incidents is that they reveal a "misguided belief that what is online is somehow in the public domain and that these mistakes are being made not only by amateurs but also be the 'professional' media. And this is despite the fact that the discussion on online copyright is almost as old as the internet itself."

In any case, how can they presume to know, without asking, that someone wants to have their work reproduced? And how, indeed, can they be sure that anyone writing a blog is an "amateur writer" at all? Many blogs are written by people who have also had material professionally published. This applies even more to images, given that almost all professional photographers and artists now have an established online presence.

Whatever the law says, it's impossible to control the flow of copyrighted material online. But a professional media organisation shouldn't hide behind this fact of digital life to evade their legal and moral responsibility. And the hypocrisy can be striking. The mass media are happy to embrace the free-and-easy culture of content-sharing when the copyright belongs to non-professional (or assumed to be non-professional) photographers, writers and film-makers. At least, they understand it as meaning that they have a perfect right to rip it off for their own commercial advantage. They are increasingly reluctant to extend the same latitude to their customers. As Kevin Anderson writes in a comment on Charlie Beckett's blog, "if newspapers show a rather fuzzy view of rights online, they can hardly seize the moral high ground on this issue, although they are trying."

We all know that the media increasingly depend on material filched from the internet to fill their pages and drive traffic to their sites. When a tasty little morsel arrives in a journalist's inbox, it's tempting to use it, and to rationalise the publication as just another step in the great chain of sharing. But there's a large media organisation is in a wholly different league from a normal internet user. If someone's amusing photo or scandalous email has provided a newspaper with good copy, it's surely not asking too much for them to take the trouble to find out who it belongs to, and give them some credit.


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