Look. I absolutely get copyright. As a children’s author with a sixth title out in July, I want my copyright protected. PDF versions of my books and pirated audio versions crop up from time to time and my publisher, part of Penguin/Random House, quickly gets them taken down. These breaches are not innocent. People are trying to make money from my work. It’s not on.
At West Country Voices, we are very careful to pick images that come from free-to-use websites like Creative Commons and Wikimedia Commons. As a volunteer-run, entirely FREE publication with (deliberately) no income from ads, no monetisation of our writers who contribute their work free of charge, we need the very low level of kind donations we receive to pay for the website, Mailchimp, Impress membership and public liability insurance. No-one takes a salary. There is no money being made whatsoever!
We see ourselves as a public service as much as anything else, able to run stories like the series on the Plymouth and South Devon Freeport, or the heavy-handed use of the police by certain Conservative MPs, or the campaign for backpack camping on Dartmoor.
We do not shrink from calling out this corrupt and damaging government, either. In fact, that’s what we are doing most of the time.
Whatever, we spend hours of our own time writing, editing, interviewing etc. Finding pictures is increasingly challenging, not least because so many are now behind a paywall. Fair enough. Photographers need to be paid. Obviously, as an outfit run on donations, we are pretty anxious about falling foul of copyright law. Our pockets are not only not deep… they are virtually non-existent, sewn-up slits!
So, it’s a scary situation when we get emails demanding sums of money for alleged copyright infringement and the threat of expensive litigation if we don’t cough up the sums demanded within 14 days.
We know that accidental, unintended breaches are still breaches. Sourcing unattributed images from social media does not avoid the potential for a breach. But the cases put to us by this fee recovery operation include the following:
- an image sourced from Creative Commons, licensed under CC licence 4.0 (and in fact the property of the government of Ukraine)
- an image sourced from FlickR and marked ‘public domain’
“Unfortunately, it sounds like a third party may have misrepresented rights in that image and made it available as Creative Commons. That is one of the downsides of using Creative Commons material.
You have no representations, warranties or indemnification, and no model or property releases – where applicable to the image. And, as you may know, copyright infringement is strict liability, so the consequences of erroneously using copyrighted material may be high. If you do not have rights from (or tracing back to) the copyright owner, you do not have rights. All of that is to say that we stand by our claim in this matter.
The creative commons licence linked to in the source expressly states that no warranties are given with the image (http://creativecommons.org/licences/by/2.0/deed.en”
“Simply because an image can be found on the Internet through a search engine such as Google does not mean that the image is in the public domain or has somehow lost copyright protection. The term “public domain” deals specifically with works in which copyright has expired or where the copyright owner has made a clear declaration that the work is not subject to copyright. Neither situation applies here. Search engines like Google show images located on third-party sites, but they are not providing any suggestion that those images are in the public domain. For example, if you do a search on Google Images and click on an image, the notice “Images may be subject to copyright” often appears below the image. None of the images that we work with have been expressly placed into the public domain.”
What are we supposed to do with that?
We wrote back:
“We do not understand how you can make a claim on a Creative Commons licensed image which explicitly says that we are permitted to:
Share — copy and redistribute the material in any medium or format for any purpose, even commercially.
Adapt — remix, transform, and build upon the material for any purpose, even commercially.
The licensor cannot revoke these freedoms as long as you follow the license terms.
The warranty comment states: “No warranties are given. The license may not give you all of the permissions necessary for your intended use. For example, other rights such as publicity, privacy, or moral rights may limit how you use the material.” These would appear to be very specific rights.
What this basically amounts to is a threat that no images on Creative Commons can be safely used by small, volunteer-run operations like ourselves. It doesn’t sound right.“
And they replied saying, in summary, that as we don’t agree with them, we had better take legal advice.
With no money? Not an option. It’s basically a standoff. They flash the threat of their deep pockets, we lie awake at night stressed out and furious at what feels very like intimidation.
The other category of image use we believe comes firmly under fair use/fair value: screenshots of publications in the body of the article, with links to the original embedded in both the image and in the text. These might be a photo of the cover of The Guardian, for example. They aren’t used as the main image and their context as a third-party article is absolutely crystal clear. We fought off another predator on this a couple of years ago.
There is one image which is more problematic. Lifted from Twitter, we labelled it ‘sourced from Twitter, origin unknown’. It was being used a lot, uncredited. No excuse, we know. It turns out it belongs to a well-known news service (once we realised we could do a reverse image search on Google). We traced the photographer and contacted him to ask if the claim was a scam. He said no, but he was sure his company (the ultimate owners) would ‘let us off’, effectively. Funnily enough, a recent Google image search to check the provenance again revealed that the attribution has changed from the photographer we contacted to another over the course of a few weeks. Might we have been accused of crediting the wrong one?
What do we do? We dread opening emails (they send plenty!). We think they’re wrong on all but one, but they say it’s up to us to prove that. And the fact that they are wrong on all of them bar one, makes us mistrustful and very resistant to ‘giving in’.
So, as is the case with so many things, it’s the little guys who get persecuted and intimidated and who, realistically, have no recourse to the law. Unfortunately, although these companies get reviewed as ‘scammers’, they aren’t. But their methods do strike many as misguided at best and unscrupulous at worst.
Any free advice, please? Some supporters have urged us to start a crowdfunder, but we don’t want people donating money to fight silly cases. Money is tight for most of our readers. If we do get donations, we’d rather spend the money building awareness of the big issues facing the country or encouraging people to donate more to charities trying to tackle social injustice, inequality, human rights issues and climate emergency.
We don’t want creative people to miss out on income and we really have tried our best to play a straight bat. Now we’re at an impasse, and it’s stressful!