I haven’t blogged in quite a while – my
apologies. Like many of us I have been
struggling to get work, and complete it when I have found it, and I have also
been overwhelmed by the copyright situation and current discussions going
on. It was this piece in the Guardian
yesterday, on top of discussion that photographers have been having amongst
themselves about the unbalanced mention of snappers/smudgers news photographers
at Leveson, that bring fingers back to keyboard.
Whilst I
have huge sympathy for those who have had their lives quite clearly interfered
with by a very obtrusive British Press, it is not every journalist or
photojournalist who engages in this kind of activity: none of my friends do,
and few if any of the thousands of photographers I have regular contact with
around the country. But they are out
there and I have seen them work. :-)
I have been
a professional photographer all my working life, Although I have very small
interactions these days - since about 2003, the large part of my career has
been dealing with newspapers, the large majority the nationals say 70-30%. And whilst it is true I have never been a
staffer, I have been a contract Freelance for some years with the Sunday
Telegraph and I have undertaken countless thousand commissions for the rest of
Fleet Street, and there isn't a single Fleet Street Picture desk I have not had
a large amount of contact with over an extend period between say the late
seventies and 2003 I worked for the ST picture desk for some thirteen years as
a sports photographer, and also and subsequently, ran my own sports photo
agency. In all this time I was
primarily a sports photographer working all over the world but on occasion I
also did what is known as ‘news’ work and sometimes features, not just
photographing sporting events and people.
I work mostly on my own, but also worked as part of a team, and certain
situations require that everyone has to work as part of a ‘pack’.
I have seen
some incredibly professional behavior from my colleagues most of the time, but
I have it is true also seen behavior that has made me very angry - and I am
not a person to get riled easily. Any
one who makes me angry must be behaving very badly indeed.
I have seen
photographers blatantly flout police instructions and lines in order to get the
picture that their colleagues could not get because they followed police
instructions. I have equally
experienced photographers abandon image taking in order to help people who have
been caught up in situations and desperately needed help - always a difficult
decision to make, but one thankfully that most of us do not have to make.
I have
witnessed photographers being ritually picked on by crowds at many different
events, including my first ever ‘Premier League’ game where we,
(photographers), were pelted by sharpened coins and darts from the crowd
(Everton V Tottenham for the record).
The worse
thing regularly seen is the ‘chancers’.
Like many
people I have had a low opinion of much of the headlined material and what was
written in the News of the World, the Sun, the Star, and also at times the
Mirror, the People, the Express and the Mail, the Mail on Sunday, Sunday
Express, and despite their high(er) brow status the Times, Telegraph, their
associated Sundays and even on occasion the Guardian and Observer have made me
wince. I loathe so called kiss and tell
journalism, and the sort of Journalism where a headline is derived to sell a
newspaper and it turns out the content has been poorly researched if at all,
and it is mostly lies. I hate the
two-inch capital headlines and the three pages of slander, apologised for
months latter with a two-inch column retraction hidden in the middle of the
paper.
Despite all
this, most of the time the people I have dealt with on Picture and occasionally
news desks have always appeared to be decent people, and hardly ever anything
other than totally professional.
I have
never understood how with all the professionals I deal with, where that the
nastiness and dishonesty comes from.
Having said
that I do recall over my time a number of situations, which I now recognise as
being at the very least 'dodgy'.
I do recall being sent to a Millwall home match
once and being asked to specifically photograph crowd violence - football
action not required.
I recall another situation when there was a bomb
scare at the Grand Notional when the photographic team for the Sunday
Telegraph was being urged by the Picture editor (safe in London) to stay
inside the police barrier and remain in the ground whilst everyone was
being evacuated.
Equally I remember the huge effort being made to
work on behalf of photographers by that very same Picture editor when a
photographer had been arrested in a difficult situation overseas.
I have seen photographers behave appallingly at
photo shoots, when most agree to stay behind one position to the benefit
of all, and one 'chancer' decides to flout the agreement at the last moment
and get pictures that are unique and at the same time turn over everyone
else because all other pictures have the flauntee in them as he dashed in
front of everyone else.
I have seen photographers (staffers) sharing
images, and seen the same image given nine different by lines in as many
papers.
I have seen my own images given a staffers by
lines.
Given a
little more time I am sure I can come up with many more incidents, anecdotes and
similar remembrances.
I do recall
that for the first fifteen years of my career, I refused to supply the Sun and
the News of the World, out of disgust, but that due to a series of situations I
ended up working with the NoW desk in the nineties, and in my experience the
News of the World Picture desk was the most professional I ever dealt with, and
that they were also consistently the best payers. Ironic or what?
Most of the
time, when it comes down to badly behaved photographers, and there are a few, it
is the rogues and chancers, and increasingly these days the paps - not
experienced professionals but people chasing big bucks offered by some papers
for the very pictures that are abhorred by Leveson contributors (including me
it must be said). Many of these paps
are out of work , acquire a camera and follow the myth that professional 'photojournalists'
are regularly paid big money - (we are most emphatically not), and confuse news work with hassling
and chasing after celebrities.
The nearest
I have ever done to this was the very occasional doorstep work, and even that I
found out of place and uncomfortable most of the time.
I would suggest that the large part of the problem comes from two sources. An unregulated press, which seems to have pressured itself into publishing more invasive so called news, with less checking and poor verification than we have ever seen before, along with the incursion into the industry of operators who work with few guidelines and observe no rules. If every photographer, journalist and Editorial desk insisted on working to (say) the National Union of Journalist ethical guidelines then this inquiry would never have been needed in the first place.
And I would say now as I have said before it is only a very small minority you cross the line, but do it regularly. if they are allowed to get away with it then it will happen again, and again, and again. If we don't punish transgressors then can we really be surprised at the results?
Self-regulation? Don't make me laugh. It didn't work for bankers and it didn't work for the UK press.
I would
like my voice heard in this please, and I know there are hundreds if not
thousands of professional photojournalists who would echo my thoughts.
"What, if anything, should we do to change the UK's IP system in the interests of promoting more rapid innovation and economic growth?
It is through that lens that I will be assessing all responses. The most persuasive arguments will be those supported by the most robust evidence. That evidence might come in the form of statistics or in case studies based upon direct, personal and organisational experience."
So Ian Hargreaves wrote asking members of industry and the public to contribute to his consulting exercise on UK patents and copyright
I can comment only on the experience I have had as a creator, as an agent for other creators, and from my experience dealing with creators all over the UK, mostly, but not exclusively photographers.Copyright law in the UK appears simple enough, and far from complicated, although, it must be said, there are some glaring omissions to the detriment of creators, which include the need to assert moral rights in created work, and then the dispensation to give a credit allowed to newspapers and magazines.Lack of credit does hurt creators in several crucial financial ways, and in addition it also hurts the consumer of product because the consumer is often then unable to verify the source of material whether it be written or an image.
By allowing created work to be published without a credit, without the author’s identification, the author loses the gravitas that publication gives the creator’s brand.It is through publication and the knowledge that a work is by a particular creator that creators build up their brands.Whilst the scale might be different, brand awareness is vitally important to creators especially those who work on their own as sole traders. Just as important as it is to a large supermarket or a major publishing house.It is as important to a photographer as it is to an artist.Lack of brand awareness seriously damages saleability.
The lack of a label identifying the author also affects the consumer.Particular creators, whether they are a reporter, a writer or a photographer, (or any other type of creator), add value to the printed page or the video report etc.Knowing who is the writer or the photographer/illustrator also tells the consumer that the report, the writing, or the image can be relied on and is factual – that it can be verified.
I have been a press and editorial documentary photojournalist now for 35 years. My first images were sold in around 1975. In the time I have been trading I have changed my trading name probably five times, my address as many, and my phone number a little less.When I started I had neither and e-mail contact nor a mobile phone, and whilst these latter have now been constant for some fifteen or so years before that they too have changed several times.
During this period I have distributed scores of thousands of photographs.Initially as black and white prints - none of which will have my current contact details, then as colour prints - again no current details on them either, and then from about 1992/3 mostly as digital files. Many of the earlier digital files will also have incorrect contact details.
Whilst after each change of contact details I have always contacted each and every client, even defunct ones with the changes, how many of my images (80,000+) will have been as diligently updated?
So, even though my name is easily 'Googled', most of my work put out to clients, both commissioned and speculatively, over at least the first twenty-five years of my career is likely to be orphaned in one way or another. Add to this the fact that the majority of my work published in Newspapers, and a substantial amount of magazine work is published without out a byline, and perhaps this can give an indication of the actual extent of orphaned work - just amongst professionals. Can I keep track of uninformed uses? Not a chance. Do clients contact me to ask if they can use older material from file? Rarely. Turning to the BBC. They used to have a large number of sports images for use with 'A Question of Sport'. These were exclusively transparencies.None of mine will have my current contact details. How many of these images are still on file? What would the BBC do if they wanted to use one now or in the future?
I used to be a contractor with the ‘Daily’, and then the ‘Sunday’ Telegraph newspapers. Many thousands of my images are on file with them, and I have no reason to believe that they have purged me from their digital systems (rather the opposite). After I stopped being part of the 'team', I stopped receiving regular cheques. But my work was still used as stock. I used to go to their library every six months or so and search through the editions. Due to time constraints I ended up only being able to check the final editions, but even so every trip used to reveal scores of uses, which I was able to invoice for £1000s.
Now in Nottingham, I no longer have access to their library, but have the uses stopped? Every now and again I pick up an on-line use, but have huge problems in getting paid for them.But how many uses slip through, get used and I simply remain unaware of the use? The Telegraph advise that they pay on invoice.
It is much the same for the Mail, Express, Mirror, Times, Sunday Times, News of the World, Star, Sunday Mirror, People, FT, Guardian, Observer etc all of whom have used my work, commissioned my work, and stored my work in their libraries. Occasionally, I get a payment, but being in Nottingham I am not in a position to check all editions even if I could now justify the time to go through every paper available to me in Nottingham (I can't). So over a year how many uses do I not get paid for?
And yes, I know that as my material ages it would be used less, but I get enough requests and queries for my older work to know that it does have a value and could well be being used in a small trickle with almost everyone of my former National (and regional) newspaper clients. But none, apart from the Guardian, (and their system is manual so fallible), seem to volunteer payments these days, so it seems.
How many of these Publishers and former regular clients can say that they have updated all my details on all my older works?
Increasingly over the past ten years I have experienced publishers asking me to sign contracts, which give most or all of my rights to the publisher.This goes a lot further than not giving an image credit, but denies me the ability to sell my images to other clients in the future, and equally if I did sign such a contract it would give the publisher the legal right to sell licenses of my images to third parties without any recourse to myself or any payment to myself.Whether these third parties are other companies within the publishing group or completely different third parties is irrelevant.Each use should be paid for – that is how the creator earns his or her living.To deny the creator the ability to sell license to their own images has an immediate detrimental effect on their ability to survive economically.
Being able to licence ones own work to third parties has become increasingly important in the past twenty years, as since 1994 the fees paid to editorial photographers have either stagnated, or in the worst cases actually fallen.This does not just cover commissioned work, but also work taken from stock files, (usually paid for in proportion to the size used).As publishers increasingly insist on contributors signing over their rights to licence and exploit their own work, it becomes more and more difficult for those creators to survive.Of course the creators with the best reputations are able to resist such economic attrition, but those new to the industry are often told that such assignment of rights is the business or industry norm, when of course it isn’t, and rookie creators are given a very rough ride in the industry that they have chosen.
Photographers report numerous practices that can be regarded as anti-competitive, including the demand to transfer copyright that is made by organisations as diverse as Future Publishing and the BBC.Copyright should be a basic human right, and no large corporation should be able to, (should be allowed to), use its commercial muscle to force sole traders to part with extra publishing rights or indeed copyright without a suitable and appropriate payment.
The only reason for publishers to demand copyright as a condition of purchase or sale is so that they can continue to exploit the created works without making appropriate and further payments to the creator.That undermines the entire copyright licensing system to the direct detriment of the creator.
Of course, such tactics whilst they give a short-term advantage to larger players such as publishers do in the end have a very detrimental affect on the industry as a whole.There are fewer and fewer full-time editorial photographers today than there were twenty years ago, and although universities and colleges are training students, very few are actually able to make a career in the creative arts – especially photography, work.
I have become very concerned with the issue of orphan works.What started initially as a very credible need by the library and academic sector to digitise previously published works, has ended up being very far from this simple academic ideal.
Recently we have seen attempts at orphan works legislation fail to pass through US legislature, and we understand that the similar legislation initially designed to allow libraries and academic institutions to digitise published works without fear of prosecution from copyright owning creators.
Few if any creators reject the idea of digitising collections of works.Indeed the project has the support of all those I have discussed it with.The difficulty has always been that in order to digitise existing hardcopy collections it is inevitable that commercial entities will be engaged to undertake the actual digitisation process, and that in order to pay for the work done the academic institutions and libraries will start to sell of rights which they do not have.
Indeed we have already seen this happen with the British Library and the British Newspaper Archive currently housed in Colindale
James Murdoch has accused the British Library of acting for commercial gain with plan to digitise newspapers – the library says this is 'patently not true'
Whilst the British library says that it is not making any commercial gain out of the digitisation process, it is very clear that Brightsolid a division of DC Thomson most certainly cannot make the same claim.They are not digitising the archive out of a sense of community spirit, but because the see and intend to exploit a commercial opportunity.Neither Brightsolid nor the British Library have adequately explained howthey can identify which photograph or which article has been written by a staff member, (therefore the copyright belongs to the newspaper publisher), or which have been created by freelances, (who own their own copyright).Neither have they adequately explained how they will attempt to ask permission for those pieces of original created works to be sold on to 3rd parties.In addition they have not explained how the original creators will be paid their rightful percentage of the sales of articles made.
The digitisation of the Newspaper archive is a very worthwhile project, but due process must be gone through, and no one should be guessing what is or is not in copyright, now should any commercial entity be profiting from creators’ original work without a basic agreement to do so and a mechanism in place for apportioning a part of each sale to those creators.
The Royal Photographic Society, that esteemed organisation basically aimed at amateur photographers has launched a new initiative which I am sure will be received with some trepidation by its professional members, especially those based in the South West who make at least some of their living documenting their region.
RPS is asking its members to give images to the South West Tourist Board.
Why? photographers are asking. An exhibition perhaps, sponsored by the RPS.
Oh no. the reason is simple.
Our primary objective is to launch an advertising campaign based on the line "the season doesn’t end with summer". This will be online primarily, but hopefully tourism partners will commit to carrying this theme to a wider audience via: * static displays at major motorway service areas, * features in in-flight magazines, * a media campaign taking in a range of national newspapers, specialist magazines and trade shows, * static displays at major motorway service areas, * features in in-flight magazines, * a media campaign taking in a range of national newspapers, specialist magazines and trade shows,
That is to say, maximum exposure at minimum cost. A cost that will largely be borne by the professional photographers who would normally be supplying images. Now is that fair? Is it ethical?
If it is good enough for the South West Tourist board, where else will the RPS turn its attentions? The Olympics perhaps.
“It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified.”
Moral Rights , What are they, Why we need them, and why they are important?
(Whenever the words creator, author, photographer or similar are used they should be read as non-gender specific, and to denote all genders as appropriate.)
Moral rights are frequently misunderstood by many people, especially those who don’t think they have any to defend. Indeed, many creators who actually do have a vested interest in their own moral rights often state that it is not an issue - mainly because they don’t understand the concept or the facts of the matter. But in today’s world of ‘Facebook’ and ‘Flickr’, ‘MySpace’ and ‘Twitter’, Internet based social networking makes everyone a creator, and everyone a publisher.
How would you feel if a major newspaper took your image from your Facebook site and published it, but didn’t give you a credit or pay you?
How would you feel if an oil company followed your Twitter link and took an image of yours and used it in a ad campaign and didn’t ask you first?
How would you react if the BNP took a personal image from your website and used it as part of their party literature, didn’t ask you, didn’t credit you and didn’t pay you?
So what are ‘Moral Rights’.
According to the Intellectual Property Office, (IPO) the Government department that deals with the matters of copyright in the UK:
“Moral rights give the authors of literary, dramatic, musical, artistic works and film directors the right:
·to be identified as the author of the work or director of the film in certain circumstances, e.g. when copies are issued to the public.
·to object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director.
In contrast to the economic rights under copyright, moral rights are concerned with protecting the personality and reputation of authors.”
In the UK, (currently), as is suggested in the IPO explanation, there are a number of differences between copyright here and say in Germany and France and other sectors of Europe. In the UK, several publishing arenas (most notably Newspaper and magazine publishing and some book sectors) are classed, as an exception to the general rule and the publisher is not obliged to recognise the creator/author.
In addition, in the UK, unlike other areas of Europe, the right to be recognised as the author of ones own work has to be asserted, and is not automatic. In the UK a creator has to demand his or her moral rights and cannot expect them as in other countries to be applied automatically.
Further to the IPO definitions, we can add three other moral rights which are recognised widely other than in the UK, they are:
The right to have a work published anonymously or pseudonymously.
The right to decide whether a work may be used or not.
The right not to have work falsely attributed to you.
So why do we need ‘Moral Rights’?
Whilst moral rights are distinct and separate from economic rights they are becoming more and more important and interwoven. With clients becoming more and more cost-conscious, and the business of photography (in particular) becoming more competitive, being recognised as the author of ones work becomes more important than ever before.
Indeed, it would be incorrect to say that a mere credit alongside a photograph whether on the web, in a book or magazine, or in a newspaper can be used in itself to pay the mortgage, the rent or buy food, but
it is true to say that having a credit alongside ones work raises awareness of ones abilities as a photographer and this can be very useful when acquiring clients.
With the proliferation of the Internet (World Wide Web) in publishing today, where more and more imagery is used than ever before, having a credit alongside ones work has several functions. Not only is there the already mentioned ‘raising ones professional profile’, but also in a climate where too many people believe erroneously that something published on the web is in the ‘public domain’, having an acknowledgement of an author or creator does go some way to asserting ownership, and it becomes less easy for an infringer to claim, "I didn’t know".
Orphan works have been raised as an issue in recent times with legislation proposed both in the United states and in the UK, and although each time the legislation as proposed has been rejected, it is clear that at some point in the near future orphan works will be legislated for.
The current accepted definition of ‘Orphan Works’ is that they are created works for which for whatever reason have become detached from their creator, and now although they may well be in copyright and owned by someone, because the author cannot be identified, their status is in question.
Because it is an 'orphan', does not mean that it does not belong to a creator, far from it, as copyright extends through the life of an author and for seventy years after their death, this means that the huge majority of photographs that have ever been created are actually still in copyright, and to use them permission must be sought from the copyright holder.
Just because at one instant in time the creator/photographer/author of a work is unknown, this does not change the status of the copyright of an image or work.
Why are ‘Moral Rights’ important?
They way that photographs and other created works are published is through a licensing system. This is important, because of the very large number of ways that any created work can be used.
The licensing system allows for a relatively small fee to be charged say for the use of an image at a small size in one issue of a magazine or newspaper, and a much larger (justified) fee for a work that is published in a nationwide poster campaign. It clearly makes sense for there to be a difference in the fee charged for these two very different uses, and this is the great advantage of licensing for the client/user/customer. One pays for the use.
If the use is small the fee is small. If the use is greater, so is the fee.
To be recognised as the author of ones own work is fundamental to the production and use of any artistic work.
But it isn’t just a matter for professional photographers. Amateur photographers whether serious producers or just those exchanging images in social media need to have their moral rights recognised as well.
It is now well documented that UK media (and others of course) trawl social media sites looking for images that they can incorporate in their news coverage. This is not just to widen their coverage but as an active way of reducing costs. There are numerous documented cases where images have simply been lifted and published. No permission sought, no credit given to the photographer and of course no fee paid.
UK publishers are presenting contracts to photographers which strip them of copyright, economic and moral rights, often for the same or lower fees than were previously paid for single use rights:
The Daily Mail has reaffirmed that it doesn't infringe on photographers' copyright after it was caught using four images without their authors' authorisations
Bauer Media, one of the UK's largest publishing companies, is rolling out new contracts to its freelance photographers, grabbing 'in perpetuity' all of their copyrights and moral rights.
Agence France Presse filed a complaint against Haiti-based photographer Daniel Morel, claiming he engaged in an “antagonistic assertion of rights” after the photographer objected to the use by AFP of images he posted online of the Haitian earthquake.
Freelance press photographers have been dealt another blow after Guardian News & Media announced it would cut its space rates by up to 50%, only a few months after it stops paying reproduction fees.
In the last few days the British Nationalist Party (BNP) have started to deliver their campaign leaflets. There are at least two varieties but they are both quite similar and their main campaigning point is against immigration. You can see leaflets delivered by the BNP around the UK thanks to The Straight Choice a website dedicated to mapping campaign leaflets. The current leaflets feature a section titled “Why we’re all voting BNP” with photos accompanied by a bit of text, presumably this is to encourage people to think BNP voters are just like you. Unfortunately for the BNP none of these voters are real and you can prove it by using web-based reverse image searches.
May 13, 2009
If images are published without a byline, whether this is in a conventional paper printed newspaper or a digital printed Internet article it can create the impression that the image is in the public domain and that no one cares about the paternity. Whilst this is a total false impression, one can see how an ignorant public who have been taught little enough of copyright can come to the conclusion. One of course would not expect those working for newspapers to behave in the same way.
Publishing without a byline is also the most common way of creating an orphan work. Newspapers do it routinely. Social web sites like Facebook and Flickr routinely strip all metadata from images as part of their operation, so even when photographers diligently complete all metadata fields with image identity and paternity this image is lost on publication. Anyone copying or downloading that image, even if they do it with every intention of contacting the photographers may find it more difficult or impossible to do so.
But it is not just large publisher, companies and political parties who find steal and appropriate images for their own ends. Individuals do it as well. See the case of Daniel Morel whose images were allegedly stolen by Lisandro Suero before being taken up by AFP.
Images can be copied from the web and re published almost anywhere. Now many photographers (especially amateurs) are quite happy for their work to be copied and redistributed, but in most case the assumption is made that the original source is attributed and a link provided. If there is no requirement for even this minimal social nicety, then even the much abused Creative Commons licensing form ceases to function.
The arguments against Moral rights.
There are those who feel that creators don’t need, or shouldn’t have moral rights, whilst ironically at the same time asserting their own rights in work that that they have assembled.
The Newspaper Society (NS), Newspaper Publishers Association (NPA) and Periodical Publishers Association (PPA) who represent publishers in the UK are very happy with the current working practice that means they don’t have to credit photographers (at all).
They argue that for employed staff, as they (the employer) supply the cameras and equipment enabling the photographer to work, that therefore the actual creator does not need a byline. Whilst current law gives ownership of the images produced to the employer, on what possible basis should the creator be deprived of recognition for producing his or her own work? There is no reasoning that makes sense of this.
As today’s photographic publishing ethics demand that documentary and news photographs not be altered or tampered with in anyway, they can only be the creation of one photographer. In the cases of deliberately altered pictures (montages etc) then surely this also must be acknowledged alongside any creator byline?
We are told (by the NS, NPA and PPA):
“Turning to Moral Rights, there are of course various exceptions to the ‘paternity’ and ‘integrity’ rights which operate where a work is produced in the course of employment; for publication in a newspaper, magazine or similar periodical; or for the purpose of reporting current events. These are all practical measures which recognise the exigencies and unique nature of the newspaper and magazine businesses. All the exceptions and qualifications are designed to ensure that the rights do not impose unduly burdensome obstacles on normal business activity. Existing models would be impossible if some of the proposed changes to moral rights were adopted, which would impact adversely on business and press freedom.”
This is disingenuous to say the least, and does not stand up to examination.
To quote Paul Ellis:
“All newspapers are laid out by automated, scripted, digital processes. Properly by-lining a picture is a simple matter of editing the layout script to extract the photographer's name from the image's IPTC. Nothing more. No "forced delegation of decisions" is needed. Our requirement is utterly cost-free to the publisher.
These people talk as if they're still in Fleet St. dealing with hot metal.”
The argument made by the publishers relies entirely on the general ignorance on the side of the reader, of the processes involved in publishing in the 21st Century.
The Publishers say:
“Often individual articles, not just whole newspapers, are the work of several individuals.”
But not photographs of course! Photographs are supposed to be published without addition or removal, so are only the creation of the photographer concerned.
They go on:
“The rationale for the disapplication of the right of attribution vis-à-vis a newspaper or magazine lies partly in the practical difficulties of ascertaining which of the individuals who contributed to the final published version of an article – researchers, journalists, sub-editors – should be accorded a by-line. It is not practical or even possible to identify and credit them all.”
Yes, publishers really do say this. If publishers are unable to keep track of a digital image presented to them, or that they have acquired, or that they have scanned themselves from hardcopy or negative, then surely that indicates a severe problem with the internal systems being used rather than a tiresome difficulty presented by outsiders that they have no control over?
We are further told:
“Similarly, a news or picture editor who is briefing a freelance reporter or photographer on some fast-moving drama needs to be confident that the key terms over rights ownership and are well established and understood in advance.”
This is true. When professional photographers supply a competently run picture desk, everyone involved understands copyright and ownership. How does competency adversely affect moral rights? This should be the very occasion when creators can be assured that all their moral rights will be upheld, surely?
They tell us more:
“We are unaware of any evidence that the current regime gives rise to any significant negative outcomes either for publishers or for contributors. Individual issues about sub-editing or crediting are easily dealt with on a case-by-case basis. Proposals to strengthen moral rights are less to do with attribution and integrity than with bolstering the economic power of those claiming them.”
Increasing moral rights so that creators are recognised as such automatically, has no adverse affect on any publisher acting in a law abiding and open manner. Many would believe that the only publisher who it would be seen to gain some sort of benefit out of deliberately withholding the name of a creator would be the sort of publisher that wished to exploit such works without the knowledge of the creator.
There is another benefit to attribution, which has not been mentioned yet, and that is the benefit to the reader, viewer, consumer, or user. Giving a verifiable by-line gives some reassurance to the user that the content they are viewing can be trusted and relied upon.
Publishers continue
“The preservation of strong copyright protection for publishers, together with effective means of enforcement, is vital under the UK, EU and global intellectual property regime. The application of moral rights would be addressing a problem whose existence is unclear and would have a detrimental effect both on existing models and on the development of newspaper and magazine companies‟ content and information services across media platforms.”
Why should strong copyright protection only be for publishers? Surely the same strong copyright protection and this includes moral rights, should be shared by both publisher and creator. After all we would not want to see one law for the rich and one law for the poor, as we know that would be totally unjust and unfair, and equally unacceptable.
The problem with deliberately withholding credits and author information from images and other work is that it immediately creates orphan works, and as we have seen with the British library, currently trying to digitise the national newspaper archive, the biggest single problem they now have is recognising whose work they are trying to digitise. As this is being done by a third party company wanting to make profit from that digitisation process and subsequent distribution, it is a necessary and understandable legal essential that permission must be sought from each and every creator. To do any less would be to totally undermine copyright across the globe.
James Murdoch has accused the British Library of acting for commercial gain with plan to digitise newspapers – the library says this is 'patently not true'
“Strengthening moral rights would increase uncertainty for publishers and weaken copyright law.”
It is very difficult to see how strengthening moral rights could possibly affect publishers adversely in anyway, especially if they are acting in a correct a publicly acceptable moral manner. Asserting all the moral rights discussed would only strengthen publications, and ensure that all dealings with creators were honest and above board, which is I am sure exactly what all publisher want in their dealings with their suppliers.
How can strengthening moral rights weaken copyright law? Moral rights are the bedrock of copyright law. Without Moral rights it is difficult to see how copyright law can work to the advantage of anyone other than the unscrupulous.
“The exception to the right to be identified as the author of a journalistic work was introduced to the 1988 Act at the last minute and in the days of hot metal typesetting. Then, publishers perhaps had cause to fear that the slug of metal bearing the photo credit or article by-line would fall on the floor and be kicked.”
Viscount Bridgemanspeaking in the House of Lords during debate on the Digital Economy Bill, Clause 43 Monday 8th February 2010
“Moral rights are currently one of the poor relations under UK copyright law. Many of the concerns about orphan works that we have talked about today would be cured if there was a proper right of attribution-a proper moral right-under UK law, particularly for magazines and newspapers, which are currently exempted.”
Lord Clement-Jonesspeaking in the House of Lords during debate on the Digital Economy Bill, Clause 43 Monday 8th February 2010
So the Moral rights that we need to be put in place for photographers are:
The right of authorship or paternity: any user of the work must state the name of the author unless released from the obligation by the author. This right should be automatic and should never require assertion. The release of obligation should never be as the result of bullying or oppressive coercion.
The author/creator should also have the right to have a work published anonymously or pseudonymously.
The right of disclosure: the author has the discretion to decide whether, when and how the work will be made public. No one should be able to publish a work without first referring to the creator, and abiding by the creator’s decision.
The right to respect for the integrity of the work: the author may oppose any change, distortion or mutilation of his work and any prejudice to his honour or reputation, no one should be allowed to alter or change a work prior to publishing without the creators express permission.
The right of withdrawal: the author may withdraw a disclosed work in return for compensation to the publisher. If a photographer is unhappy with the use of an image within a particular publication, campaign or context, then they should be allowed to prohibit use even when the work has been commissioned.
And for these rights to work they need proper legal support both in law and with the means by which enforcement can be initiated and function. Misuses, lack of credit, deliberate or careless transgressions all need financial sanctions easily obtained and enforced. The onus on enforcement should not be left solely to the creator who is often simply not in a position to perform this function
These rights need to be inalienable, although waiverable.
They need supporting with legislation.
Countering or not honouring these rights need to be punishable within law, and this must be made easily accessible. Most creators are sole traders and do not have the finances of medium to large publishing companies. This status must not be allowed to prevent creators getting their rights honoured.
Deliberate and careless transgressions of these moral laws need financial disincentives.
The moral rights of creators are basic human rights. They are not costly to follow and honour. They are of a benefit to society, both the user and the creator. All creators are users, and indeed in today's digital social networking culture all users are also creators.
If moral rights are allowed to erode further, then we will simply find many of the benefits of digitisation which society values (rightly) so highly will be lost. As a society we must not let that happen.
A colleague asked me today, what he should be doing with a lifetime of acquired skills as a photographer working for newspapers, when newspapers were down sizing, losing staff and cutting budgets to freelances?
What answers could I give to this question, especially as we have just learned that the Mirror Group is following the Guardian, News International and others in losing photographic contributors.
A few years ago after spending all my working life supplying newspapers as a freelance I had to make the decision to carry on regardless, supplying regular newspaper clients for the same money each year, whilst my expenses increased, and in the case of regional newspapers actually for less money than a few years before, or to say enough is enough.
My business model of supplying mostly national newspapers was no longer viable.
Whilst the actual catalyst of change for me was the death of my business partner, it was clear that had that not happened the business would either have slowly expired, or maybe, if I had been lucky my little agency might have been bought out by Getty or one of the others.
The change was difficult, painful, and hard.
I left sport - my comfort zone for more than 25 years, and London where I had been based. I ended up going part-time for two years – in Nottingham.
When I came back to full-time smudging it was not as a smudger, but as a photographer supplying editorial imagery to businesses, non government organisations, and the local authority. I also do a hell of a lot of stock.
From 2003 - 2009 my business improved year on year, quarter on quarter, although the overheads are somewhat scary compared to say 1994 - (the last year I experienced a proper increase in pay from a newspaper).
This last 18 months have been very difficult, and my gross has remained static. I have had to continue re-inventing myself, my work and finding new clients all this time, and am doing so today. It is not easy; there is no magic spell. Many of us (photographers) will not make it through to retirement as full-time photographers; that is clear. Statistically I suspect those of us who have been in the industry longest will have the best chance of weathering the difficulties.
The one thing I am certain of, however we survive, and to whoever we manage to sell our work, few of us will find that newspapers form a majority of our clientele going forward. The Guardian, The Telegraph, News International, Manchester Evening News, Liverpool Post, and now Mirror Group Newspapers all have either dispensed with staff photographers or cut back to no more than a handful.
Freelancers whilst used in droves twenty years ago, are now hardly budgeted for. We have to get real, and have to understand, that whilst we may be photojournalists by trade, training and profession, we simply aren't going to be supplying newspapers going forward.
I spoke at length to one of the local universities here in Nottingham a few weeks ago, and virtually none of those who get degrees go into the photographic industry, and none of them become photojournalists, (can't imagine what they do with all those Photography degrees).
"Where do I go now?" My friend asked.
Newspapers are not the only outlets for editorial photography.
In the last fortnight, I have photographed a garden centre and an Aikido Dojo for web sites and promo literature. I have supplied a German photo agency with hundreds of stock images, I have supplied imagery to the local council for their brochures, edited hundreds of images for UK based photo agencies, supplied images to several unions for web use and staff magazines, copied a 1950s photo album and made it into a photo book, resurrected several 'turn of the century' photographs, and reprinted them for private use.
All of these things have utilised my skills as a digital editorial photographer, none of these clients is a newspaper.
A photographer of more than thirty-five years experience. Previously based in London, and since 1999 in Nottingham. Pete serves on the National Executive Council of the National Union of Journalists, representing the unions 1800+ Photographers with his job share Simon Chapman.
Much of his time is spent following the ups and downs of professional Photojournalism.
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