The use of photographs by journalists without the permission of the photographer or author appears to be becoming more common but what does this mean from an IP law perspective for the individuals whose photographs are being used?
Copyright, Designs and Patent Act 1988 ("CDPA")
Using photographs is excluded from the 'fair dealing' exception for news reporting by section 30(2) of the CDPA and therefore permission must be sought from the owner/individual in question before such photographs are used. The individual is able to specify any conditions it deems reasonable for the use of the photographs including the levying of a charge.
Use by 'average' users
It is obvious that the majority of 'average' users of social media will not think about the legal complexities of re-tweeting or otherwise re-publishing other people's comments or photographs. The reason for a lack of forethought is due to it being widely tolerated and generally no-one being deprived of any financial benefit which might otherwise be due to them as authors of photographs. However, the position is different where media corporations become involved.
Use by the media
A leading guide for journalists on the law of IP called McNae's Essential Law for Journalists describes public interest and ethical considerations that journalists should be aware of when taking and using photographs from social media sites belonging to people who have uploaded them for their own pleasure. Such people consequently find themselves in the news spotlight when their photographs are taken and used in press articles without their permission.
When large media corporations, for example, the BBC, Sky News, The Sun etc. become involved, the photographs are used in a commercial context to generate business and therefore money for the media corporations. In such instances of use the media corporation or journalist will often attempt to exploit the rights of ordinary members of the public without being threatened by infringement of IP rights by the rights holders.
In contrast, if an ordinary member of the public attempts to re-publish or copy anything substantial from a newspaper or news website without having a licence to do so, the individual can expect action to be taken by the Newspaper Licensing Agency and a charge for use of that re-publication or copying being levied.
The Leveson Inquiry, a judicial public inquiry into the culture, practices and ethics of the British press and journalists following the major 'phone hacking' scandal, has taught us that journalists operate to various ethical standards (from the lowest to the not so low!) and that the culture, practices and ethics of the British press and journalists is not nearly uniform enough.
Below is an example of where the use unauthorised use of a photographers work was not taken seriously enough by the large news corporations.
This was a viral photo of a dress which went into mass media circulation and a debate arose as to what colour it was, whether it was gold and white or black and blue. The debate on social media began on 26 February 2015. The Dress was posted originally on Tumblr which was then taken by Buzzfeed using the original photo and wrote their own story about the Dress which eventually got 39 million hits. In response to this debate, commercial entities tried to justify why they could use the original image of the Dress by referring to the fair dealing exception for news reporting. As we have seen above, this exception does not apply to photographs.
It understood that the authors of the original photograph have instructed solicitors in an attempt to claim remuneration from the dozens of news corporations who exploited the image of the Dress for free and without authorisation.
The above shows that there is real disparity between the luxury enjoyed by journalists and large news companies when utilising the work in particular photographs of ordinary people and those ordinary individuals who take a quote from a news website and are held to account.
If you have been affected by any of the issues raised above please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@Mcdanielslaw.comin: Copyright, Digital/Tech, News