Monday, 6 January 2014

Please, just accept you're wrong (UPDATE)

Hi ladies and gents,

I'm back in Bristol now and was able to keep up the correspondence while I was on the train. Massive thanks to Jamie, a fellow photographer, for the advice and support.

Read up on the background of the Telegraph using my photo without my permission.

First up, Raphael, Secretary of FemSoc replied to me, apologising:

We assumed you were happy with your photos to be used with reference to the Bust a Myth campaign, as well as that the Telegraph would double-check. We now realise that we were absolutely in the wrong to do so, and on behalf of the society I'd like to apologise unreservedly.

Note: they had the photos because someone (who I was unaware was affiliated with FemSoc) wanted to use a photo in a not-for-profit feminist journal. I never actually sent this guy any copies of the photos, assuming he would ask me for copies of the ones he wanted to use as they were not freely available anywhere (besides being viewable on Flickr, with anti-download protection turned on, as discussed previously), so this is all a bit of a mess. Me giving permission for the use of a photo in a single journal certainly does not constitute blanket permission to redistribute my photographs, so FemSoc are definitely in the wrong in that sense.

Right, so once I'd received that, I got back to Louisa at the Telegraph. Here's the full text of my email:

Hi Louisa,
I have had a response from the secretary of the Feminist Society stating that they passed my details on to Emma in the belief she would check with me before publishing the photograph, and they accept they had no right to give her permission to use the photo.

The fact is, you have published my photograph without my permission. What you have assumed is permission is not legally admissible, as the party who provided you with it had no rights to the works in question. You did not see any documentation indicating that I, as the copyright holder, licensed the Feminist Society to distribute my work in this way, so an error has been made.

I expect the Telegraph to fully honour the original invoice I sent to you.
Regards,
Rajitha

Bizarrely, she came back with this:

You can see from the email that the Society sent us that there was absolutely no indication that we should check with you; they gave us full permission. They may be changing their story now but that's not what happened at the time.

Plenty of organisations work on behalf of photographers and offer credit on their behalf, this is not unusual.

However I can see on this occasion a human error has been made - these things do happen.

Our standard picture rate for photos is £25 inc VAT for online usage, which this was. So if you want to resend an invoice for £25 I can get that processed for you as a matter of goodwill.

I am unsure that FemSoc are "changing their story"; I think they honestly thought that giving the Telegraph my details would result in the journalist contacting me - however there is the fact that Florence from FemSoc stated she was giving the Telegraph permission to use the photographs.

While I can see that the Telegraph may have given them the benefit of the doubt and assumed FemSoc commissioned me to take the photographs on the basis of Florence's email, that was absolutely not the case and they did not acquire any proof that I had licensed the photographs for FemSoc's use and distribution.

Therefore, the Telegraph are entirely culpable for the publication of an image which they did not have the correct permissions for. I don't think third party licensing of content being common in the media industry is a defence - the Telegraph had no written evidence, for example a licensing agreement, that FemSoc were authorised to give my photos to them.

Naturally, I replied saying that I'm sticking with my original figure, which was based on average rates, a document backed by the NUJ. To which Louisa swiftly came back with:

But we don't pay anyone that amount for online photos. I'm afraid our offer is £25.

I mean, that's great that you have set rates outlined, but this was not a normal business transaction. My work was used illegally, so the Telegraph can't really act like they acquired permission in the first place and offer me a standard sum. So...I've threatened legal action. I believe the Telegraph did not do everything necessary to acquire permission for the use of my copyrighted work. They had my full name and a link to my Flickr account, so contacting me would have been easy. Therefore, they're culpable.

I've submitted an application for student membership of the NUJ and I've emailed them a copy of my correspondence with Louisa in order to see if they can assist me with this. I'm hoping this can be resolved without a court case, but I'm willing to go ahead and deal with it that way if the Telegraph won't pay my invoice. Jamie has also advised me to get in touch with the BJP, which I may well do.

Edit: Quick update - just received this from FemSoc:

Although Florence did correspond with Emma Pearce via her personal account, the email in which permission was given to publish your photographs was drafted by the FemSoc committee as a whole. We, as a body, apologise for having made that crucial error. Our intentions were in no way malicious, only careless. We hope this statement helps you in your discussions with The Telegraph (I'm about to send an email to Emma so she has our statement as a society), although if they need something specifically from Florence she can absolutely provide this.

1 comment:

Mike Beaton said...

Just a quick FYI - Having done this kind of thing before..

You have two choices:

Small Claims Court. It'll cost you £80 to file the case, but if you lose you'll not be liable for any costs.

No-win-no-fee - approach a few firms, with a case so clear cut as this, they might well agree to prosecute on a no-win-no-fee basis.

Good Luck!