The Unintended Consequences of Copyright Law in Relation to Photographs: The Vauxhall Effect

Picture belongs to Nic Walker (@Nic0)

Picture belongs to Nic Walker (@Nic0)

On Wednesday 16th January 2013 the helicopter driver, Pete Barnes, crashed into a crane in central London in adverse weather conditions. This tragic accident became the subject of intense media attention, with many Londoners wanting to find out what exactly happened when they were trying to get to work. On a personal note, I was travelling into College when the accident occurred at 8:00 GMT and received the news of what had happened from a fellow student at 9:00 GMT. This just shows how quickly news can spread in a city, simply through the social exchanges people have on a daily basis. This is exemplified with social networking, and the morning of 16th of January was no exception. Many tweets were being made regarding the event minutes after it had happened. Even tweets containing photographs and films.

Newspapers were pushed to be on the cutting edge of news-reporting, and found itself having to rely on social networks to gather information and content for their evening publications. The most notable of these was the Evening Standard, which used a photo taken by Craig Jenner (@craiglet) on the front page of its Wednesday edition. The Daily Mail, the Sun, the Guardian, Sky News, and news agencies the Press Association and Caters News all used Twitter photographs in their reporting of the event.

Copyright in Photographs and Films

This raised questions over the possible copyright infringement that may have taken place by publication of images originally posted on Twitter by the press. A copyright can exist in films and photographs under section 1 of the Copyright, Designs and Patents Act 1998. This right will belong to the creator of such works, and it has been suggested that the right in question is not waived or assigned by way of exclusive licence under the Twitter terms of service. The terms of service says:

“By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

Because this is a non-exclusive licence;  Twitter are free to use what is posted over their service, but this does not allow other media organisations freedom to publish this content on their platforms.

Defence: Reporting of Current Events

Under s30(2) of the Copyright, Designs and Patents Act 1998 there is a defence to copyright infringement if there is “Fair dealing with a work (other than a photograph) for the purpose of reporting current events.” Much of the content appropriated from Twitter users were photographs of the event, which explicitly do not fall into this defence. It has been suggested that this is “in order to preserve the full value of holding a unique visual record of some person or event.” The value of photographs for popular media consumption has risen exponentially over the last two decades, as can be seen in Mark Frith’s  The Celeb DiariesBy excluding photographs under this defence is a way of ensuring a healthy market in photography is maintained. However, like many legal forms of regulation there are unintended consequences from application of the law.

These unintended consequences can be seen by using the Vauxhall tragedy as a back drop. Nic Walker, whose video had been used without payment to him, hints at the possible consequences with his tweet:

“Amazing how many people are encouraging me to make money from a few incidental photos of a horrible fatal accident. Just credit me!,”

Mr. Walker found it astonishing that people suggested he properly assign his copyright over for valuable consideration, whenever the copyright pertained to images taken of a tragic event that the public had become interested in. If the law recognises the citizen journalist as being worthy of payment for being in the right place at the right time, there could be a swarm of individuals crowding tragic accidents and natural disasters trying to get “the best pictures” they can to sell later. These “citizen journalists” would usually not be under a contract of employment with a media outlet and will not have been made to sign a publication’s Code of Conduct. Such a Code of Conduct could include the terms of the Press Complaints Commission’s Editors’ Code which states under Section 4(1) that the press “must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on their property when asked to leave and must not follow them.” Furthermore, under 5(i)  “[i]n cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively.” These are principles that the ordinary citizen might not take into account, nor even know exist as part  of the press regulation framework.

Copyright is generally recognised as being in place as an incentive to create socially valuable works. There is clearly value in keeping the public informed through the media of events of general interest. However, the law as it stands may act as an incentive for people to generate profit by exploiting their presence at a tragic event through the selling of their photographs. It may, therefore,  act as an over-incentive making people get  pictures of such events at any cost, ignoring  the generally stringent ethical codes to be complied with by those already in the industry. The defence could be adapted to get around these possible consequences by excluding from the defence only those photographs taken in the course of employment or for the pursuance of a business (this will still help prevent newspapers stealing images from other publications, which the law is designed to stop. Whilst also safeguarding self-employed or freelance photographers who usually generate revenue through selling their copyright). It is also important to remember that this would not preclude individuals from exploiting their copyright in photography for profit generally; it just means that there is no infringement if their images are used in reporting a ‘current event.’ In fact photographs on Twitter would simply be given the same level of protection as videos posted by users.

One response to “The Unintended Consequences of Copyright Law in Relation to Photographs: The Vauxhall Effect

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