Copyright and the lawyer’s letter

Image: Passenger ferry The Pearl asunder in the Brisbane River, February 1896. Source State Library of Queensland

Most weeks this 1200-word essay comes with a copyright illustration. I’m not entirely sure it really needs one; as often when readers reply,  they strip the image out. The weekly sourcing of a relevant image can be a bit time-consuming, but a worthy task.

It’s not an issue when the topic is covered by photos I have taken on the road or around town. She Who Also Takes Photos and other family members also contribute.

As a rule, I use images which are covered by a Creative Commons license, or I browse websites which provide free images.

On occasions, photographers and cartoonists I have worked with in the past positively respond to a request to use an image. As ours is a not-for-profit enterprise, the goal is to source free images.

I was lured into writing about copyright and images after emailing the media department at Queensland’s State Library. I was clarifying permission to use an image of a ferry disaster on the Brisbane River in 1896 to illustrate a new song. I have seen this image used in the media but assume those media outlets also sought permission. It is folly to assume otherwise.

When I worked in the daily newspaper business, I attended a workshop for journalists about using other people’s images. A professional photographer had written to (an un-named newspaper), complaining that it had used one of his images without permission or payment. Yes, honest mistakes happen in every business, but it won’t get you off the hook. Even though the image in question had been used as an icon (postage stamp size), the publisher still had to send the photographer a cheque. And fair enough too. The difference is that a license for a one-off use would have cost a fraction of what the publisher eventually stumped up.

That was a long time ago, when free-lance photographers roamed the continent and took ‘stock’ photos which they would sell and re-sell to media outlets all over the world. I once met such a character on the road in the Northern Territory. He was away from home a lot but made a handsome living taking images in remote locations and licensing them to media outlets.

Now, in the age of smart phones and instant communication, everyone’s a photographer. Many of us freely give our images away, sending in stunning winter morning or sunset snaps for the daily weather reports. What we used to call ‘spot news’ – that is, a news story derived from being in the right place at the right time, is also the province of anyone with a smart phone and an email account. Certainly if the story is big enough and the image one of a handful, whoever took it will command a fee.

You would probably be aware that many media outlets have made photographic departments redundant in recent years. This often involved giving long-serving staffers sizeable payouts. News Corp alone laid off about 100 staff photographers between 2017 and 2021.

Some ex-news photographers continued to work as free-lancers – weddings, parties, fashion shoots. But it seems clear that in many instances photo licensing agencies like Shutterstock, Alamy, Dreamstime and Getty Images have replaced staff photographers. As you might expect, some ex-staffers make a less reliable living providing images to said agencies.

Warning: copyright laws can and do keep changing

We should be clear about copyright. If you take a photograph, the copyright is automatically yours. Even if you have offered it to a media outlet, the copyright remains with you. The small print (non-exclusive license), is important, so make sure you are covered.

At this point I should talk about social media and sharing of content. Many publishers now allow sharing under a creative commons license (you can use the content but must attribute the source). Where the water gets  muddy is when someone tampers with the original work or imitates it. For example, you will sometimes see on social media a photo of the famous five crossing Abbey Road, with other characters (e.g.The Simpsons) substituted. Correct me if I’m wrong, John, but is this now an infringement of copyright? A law passed in the UK in 2012 argued that if you intentionally re-create a famous photo, you may be in breach of copyright.

If you are an artist promoting your work on-line, take care when ‘curating’ content for a slideshow or video. It’s no defence to say, ‘I found it on Google’, which at the end of the day, is a only search engine which finds appropriate images on command. If your browse YouTube videos you will often see slideshows accompanying songs with not a credit in sight. Likewise, people who edit someone else’s image to to make an on-line joke (meme) are taking a risk if the image is not theirs to use. Anyone can use a reverse search app like TinEeye to see who owns a photo, so there are no excuses. Pixsy, a US-based tech firm which monitors photographic use for more than 100,000 clients, estimates that 85% of the images uploaded to the web are used without permission or license. In 2017 Pixsy compiled this fascinating list of the 10 most famous copyright cases.

Since 2012 or so, the massive improvement in smart phone photography has led to a process academics call “the democratisation of photography”. In social media you may also come across the phrase ‘pixels for all’. It’s all to do with the speed by which images are taken and then posted.

In a recent episode of the SBS crime drama Bosch, maverick detective Harry Bosch and partner Jerry Edgar visit a Los Angeles gang house, ostensibly to ask questions. The process goes awry as suspects are taken in for questioning. Punches are thrown and Jerry ends up throwing a suspect to the ground in a choke hold

“Police brutality!” yells one suspect (a gang enforcer). By the time Bosch and Edgar get back to police HQ,  footage and photos taken by neighbours and bystanders are all over Facebook.

When I worked in newspapers (before digital anything), a photographer would have to (a) attend the scene), (b) take photographs and (c) hightail it back to the office to develop the film and come up with prints for the 2pm news conference.

Today, someone can lift an image from Facebook and slap it on to the relevant on-line news page in the time it takes to walk to the editor’s office and say, “we got the headshot”.

 While daily media standards may have slipped, here at FOMM HQ we strive to do the right thing. If someone has decided to share their creative content with our wider audience, the least we can do is give them a byline. The free content websites (Pixabay, Unsplash, Free Images and others), link to photographers’ websites. Commonly the photographer suggests – “Buy me a coffee’’ – which is a hint to drop a few coins in their PayPal account.

As for historic images, anything taken before 1955 is in the public domain. The photo of the Pearl, a cross-river ferry that came to grief in 1896, originally appeared in The Queenslander, attributed to N Colclough. It may be out of copyright, but full marks to the librarians and photo editors who saved negatives like these for future generations to see.

This week is a 2 for 1 special – not only do you get to learn a few things about copyright, you can follow this link to my new song ‘The Pearl’. It’s free to have a listen.