Copyright and New Righteous Indignation

On January 5th, 2010, The Independent published a photo as a backdrop to a feature inviting readers to submit pictures of the snow and cold weather. But they never asked the photographer if they could use his work.

Newspapers and magazines have of course from time immemorial sometimes used work without either attributing, asking or paying the creators. There are a number of reasons for this, and cock-up is certainly one of them. Were it, say, 1970 and not 2010, the rights holder would have doubtless written to the newspaper telling them that they had used his or her work and demanded payment. If the paper refused, then Small Claims court would have been the next stop. All things being equal, the paper would have then paid up because in those days copyright was boringly simple.

In 2010, however, copyright is no longer boring. It is no longer the preserve of industrial regulation, it has many shades of grey and personal opinion associated with it. So instead, this is a rather subtle tale of Internet-age righteous indignation, confusion about the law, contract, the prevailing culture of media and art, and the nature of marketing and popularity.

Here’s the course of events in a nutshell:

1. The photographer notices his picture on the Indy’s website, which he has put publicly on Flickr, and over which he has asserted all rights.
2. He contacts them by email and points out that they have not attributed him, and demands payment.
3. The Indy reply saying he’s misinterpreted Flickr’s conditions and that the paper has not infringed his copyright, nor is any payment due. They say they linked to his photo from Flickr (the implication being they didn’t host it and that anyone can link to anything on the web).
4. The photographer goes public with this correspondence: The New Righteous Indignation in full force.
5. All manner of opinions are expressed, from the plain loony to the sensible, and everything in between.

Now, I am not a lawyer, nor am I a photographer, but as an observer of this many things are notable. Firstly, that nobody seems to understand Flickr’s terms of use of its API (the mechanism by which the Indy says it displayed the work), least of all me. It seems to say that anyone can use the API, but that they don’t own the works being published, the owners do, and they might assert rights that have nothing to do with Flickr. Yet regardless of what the terms are, numerous people characterise what The Independent has done as “theft.” This implies the photographer has now in some way lost control of the photo (that much is clear: he hasn’t). Some people talk in terms of “protection” from this, and “watermarking” and so on. Copyright maximalism fairly oozes from may comments, while the photo itself is, well, not much. Have camera, will point at ubiquitous snow scene somewhere in Middle England. Not exactly Cartier Bresson. Perhaps that’s not relevant, but I couldn’t help it.

So if ever there was a demonstration of why copyright needs reforming, why we need to save ourselves from insanity in an age where most art can be copied by anyone, and when almost anyone can create such art for themselves, it’s this.  If people want to reap monetary rewards though copyright in the digital age, as well as the ability to create, build on, and distribute works in that environment at next to no cost to themselves, then they must also realise they can’t have both. Copyright isn’t some magic spell. Lock content down, it disappears from view, and you’re out of a job. Free it entirely and the same thing happens. Creative Commons is the first step, but at some point traditional copyright is going to have to change as well.