Copyright is an important area of law for journalists and will feature in the 2018 Coventry media law test for first-years. Content in burgundy type is very important; material in pale grey need not be read for revision purposes. Material in black provides context.
In particular, students should understand that copyright protects ownership of creative work (even a magazine layout counts); that it automatically belongs to the creator or their estate, even several decades after their death; that it can be sold; and that the “fair dealing” rule allows exemptions for news coverage (not for still photographs) and for reviews (including still photographs). Students should make sure they read the passages on fair dealing.
If people leave stuff lying around then anyone can pick it up and use it… right? So if you find pix on the web, you can just use them. No copyright. Yes?
The simple rule in the UK is: if you created it, and no one paid you to do so, then you own the copyright, and no one else can use it without your permission. Even if you post it on the web.
This is really important if you’re trying to make a living from your creative work, or if you publish other people’s work.
But the law allows journalists to use some copyright material in news reports and reviews.
For journalists and photographers, copyright protects work on various platforms.
Copyright law punishes plagiarism and protects the ability of journalists and publishers to earn income from their work.
Journalists can reproduce copyrighted material – within tight limits. For instance, a brief extract of a written work can be reproduced in a review or a news report.
The Copyright, Designs and Patents Act 1988 protects:
“…original literary, dramatic, musical or artistic works”, including all kinds of written text, sketches, graphic works, maps, plans, and even computer programs.
It even protects “the typographical arrangement of published editions” – in other words, the lay-out.
Who owns copyright?
The “first owner” is the original author, journalist, photographer or artist. Where the work was created by more than one person, each is a “first owner” and all must be asked for consent to copy or use their work.
But where the work is produced as part of someone’s employment, the employer owns the copyright (say, a magazine publisher).
A staff journalist only holds copyright if this is specifically agreed.
Freelance journalists and photographers are “first owners” of copyright.
The first owner has copyright unless he assigns it to another party.
A freelance might assign copyright to a publisher (for money!). This means the publisher becomes the copyright holder.
A freelance might alternatively grant a licence to use their work. This might be to allow use in a newspaper but not on a website, or set a time limit (often just a few days, in the case of a newsworthy photograph or video footage).
Archive pictures – pre-1989
If a magazine or newspaper plans to use archive photographs taken before 1 August 1989, then the Copyright Act 1956 applies. This says the copyright is owned by the publication that commissioned it, even if the photographer owns the physical negatives, or digital copies.
The 1956 Act says that if the picture was not commissioned, the photographer owns the copyright.
The question is, did the photographer take the initiative to take the photograph (in which case, he owns the copyright), or did a publication ask him to take it (in which case, the magazine owns it).
Copyright on “private” pictures: moral rights
The 1988 Act changed the legal position for people who commissioned pictures for private purposes, such as a wedding. They do not own the copyright, but they have “moral rights”.
This means they can sue if the pictures of their private occasion (say) are used without their permission.
A wedding photograph taken by a commercial photographer before the new Act took effect (1 August 1989) is owned by the family member who commissioned it.
For pictures taken from 1 August 1989, the copyright is owned by the photographer or his employer, unless an agreement has been made to the contrary: a celebrity might hire a photographer and insist on owning copyright so they can control the use of the pictures.
The moral right can, in theory, catch out journalists who ask to borrow private pictures for publication – say, of someone caught up in a crime or a tragedy. Usually, publishers get away with it – people do not know about their moral right.
But people only have this moral right if they commissioned the pictures: not if they merely appear in them, or received them as a gift.
The moral right lasts as long as the copyright.
Downloading from the internet
Copying pictures from the internet is breach of copyright if there is no consent.
But many people grant free use of their images under a “Creative Commons” licence, meaning it can be used with certain conditions. Enter “creative commons image search” on a web browser to find such pictures.
Simply downloading pictures without consent, even if you do not re-use them or share them, is technically a breach.
The same goes for text.
Remember, the copyright owner may not even know their work has been uploaded to the web.
Case study: Daybrook House Promotions used pictures of popstars KeSha and LMFAO – whoever they may be – after downloading them from tumblr, mistakenly thinking this meant they were freely available. They later offered to pay the photographer £150. The judge at a preliminary hearing said if he found breach of copyright, he would award £5,682.37 because the photographer had had exclusive access to the stars.
Newspapers sometimes publish “screen grabs” from television when no other picture is available. This is probably a breach of copyright – but not if the newspaper asks for permission. It may well be given for news purposes. It may, however, be classed as “fair dealing” (see below), which allows some material (but not photographs) to be used in news reports.
And showing a photograph on TV without the owner’s permission also breaches copyright… even if it is merely held up to the camera.
Copyright starts as soon as a work is created. Where does the creator register it? They don’t. It just exists.
Does the copyright work have to be any good? Nope. Who’s to judge, anyway? The definition of “original work” is that it required skill, labour and judgement” from its maker, but not necessarily much. The guideline is:
“Anything work copying is usually worth protecting.” (source: McNae’s Essential Law for Journalists, unattributed).
Copyright protects even:
- a timetable
- TV and radio listings
- a basic rough sketch
- a map, even though the copyright holder did not create the landscape that the map is based on.
Journalists often lift information from other media. This carries a risk if it turns out to be inaccurate or defamatory, but it is not breach of copyright unless substantial chunks of original text are copied.
News (meaning information, as opposed to the writing) is not protected by copyright… but writing, lay-out and pictures ARE protected.
As McNae says, the copyright applies to the way something is described or expressed, and the way material is selected and arranged.
Freelance journalists might be asked to assign copyright to a publisher when selling an article. The general advice is that a freelance should resist this because they lose potential future earnings from it, but this may kill a deal.
An alternative is to licence publication: for instance, say it can be used in a newspaper (perhaps for a limited period, or only in certain editions), but not on the newspaper’s website.
Often, there is no written contract – the terms are understood by custom and practice. But if in doubt, seek agreement in writing.
Are quotes covered by copyright?
Technically, yes: whoever spoke the words, owns the copyright, even if it was just in an interview with a journalist.
But if a journalist or media organisation recorded the words, in a notebook or digitally, then they own the copyright on the recording itself (since it took skill, labour and judgment to make it).
Quoting casual conversation or a short quip is fine: no skill, labour or judgement was involved, so no copyright exists.
The advice of McNae’s is that reporters need not be “over-concerned” about copyright when quoting a speech or comments made in an interview.
The reasoning is that someone who gives a speech or talks to a journalist is giving implied consent – unless it was expressly withheld.
Things said in Parliament and the courts can be reported with no fear of infringing copyright.
When is it ‘out of copyright’?
Copyright in a picture or piece of journalism, or other creative work, lasts for the lifetime of the creator AND THEN 70 YEARS. The 70 years starts at the end of the year in which the creator dies.
This means copyright can be passed on in a will – including to a company.
There are different time limits for some kinds of work, each starting from the end of the year in which they are made:
- Computer-generated music or graphics: 50 years
- Sound recordings: 70 years (from the year after actual publication)
- Broadcasts: 50 years
- Work by civil servants: up to 125 years under Crown copyright
This is not a complete list.
How can you protect your copyright?
You can obtain a High Court or county court injunction to prevent an infringement.
If the breach has already happened, an injunction can ban repetition or force removal from the web. You can then sue for damages or all or some of any profit.
You can ask the court to order all copies to be destroyed or handed to you.
Is copyright breach a crime?
Under the 1988 Act, yes – but prosecutions tend to be for large-scale piracy.
How much can safely be used?
According to the European Court of Justice, a chunk of just 11 words can be protected by copyright, if it is sufficiently original. A judge in another case said this meant originality mattered more than how much was lifted.
Using even just a small part of a picture can clearly be enough to breach copyright, especially if it is a significant part – say, someone’s face.
Journalists can avoid problems to some extent by re-writing – but if they are lifting material from another media outlet, they may be in breach because copyright also exists in the selection and arrangement of material. So if the local paper selected the quotes and facts, and the same ones are used in a national paper, the local paper could sue – as happened in Wales. And they should ask whether the copyright holder is likely to sue over a small chunk of lifted text.
‘Fair dealing’: an exemption for news
Journalists can use some copyright material without consent, including video and audio, if it is “for the purpose of reporting current events” – BUT NOT PHOTOGRAPHS.
Case study: the BBC failed in an attempt to sue the fore-runner of BSkyB for using short clips of World Cup goals being scored, for which the BBC had exclusive rights. The BBC was credited on screen; the court said “fair dealing” applied.
There must be “sufficient acknowledgement”: the creator must be named (if known), and a title or other description given – where possible. In a very short news clip, it may not be feasible.
Use of copyright material in news reporting must not be “excessive”.
‘Fair dealing’: in reviews
Extracts of copyrighted material can be quoted in reviews. Again, there must be acknowledgement of the copyright holder.
In this case, whole photographs can be used in, say, a review of an exhibition or a book containing pictures.
For reviews, fair dealing only covers material that has been made public with the copyright owner’s consent (example: the copyright owner may have created or written something in a private context and be unaware that someone else has posted it on the internet).
Case study: The Sunday Telegraph lifted extensive quotes from a leaked copy of Lord Ashdown’s memoires, in a story about a confidential meeting. Both fair-dealing defences failed because:
- the article wasn’t a review
- the amount of quoted text was excessive
- The fact that it was leaked had a bearing.
There is a public interest defence for breach of copyright, but it is narrow in scope. It might apply to exposing immoral work, danger to public safety, improper behaviour by people in important positions, etc.
Case study: the Reading Post defended a claim after publishing pictures taken from the internet, showing “urban explorers” in abandoned buildings. Police and the judge felt the website promoted crime, and the paper was confronting that.
Sometimes, copyright is unwittingly breached. In this case, the owner is entitled to “an account of profits” (all or a share) but not damages.
Case study: the owner of St Helena Online website (Mr Simon Pipe) wanted to publish a picture of St Helena’s unique wirebirds in flight, which has appeared in a report on a tourism development. He contacted the company that published the report, and was given permission to use it. Weeks later, he received an angry letter from the photographer, 12,000 miles away in New Zealand. The tourist developer did not own the copyright, had not said so, and had no authority to allow publication. In fact, it didn’t have consent to use the picture itself. The picture was quickly removed from the website, with a private apology and an explanation: the photographer took the matter no further. It is not known what happened regarding the tourism report.
In the background: artistic works can be incidentally shown in the background of, say, TV news footage, without giving grounds for a copyright claim. Deliberately including music would be a different matter – but fair dealing might apply if there is an element of “review”.
Acquiescence: if a copyright holder allows an infringement to pass without complaining, they lose the right to make a claim later.
Creative Commons: where a creator posts, say, images on the web under a Creative Commons or open licence, this may only give consent for non-commercial publication. A news organisation would need to negotiate to pay for use; but a blogger who makes no money from their blog might not. Check the licence.
Readers’ letters: who owns the copyright in readers’ letters? (arguably, the newspaper, if they’re re-written before being published!). The answer is that the reader owns the copyright, but they have given an implied licence to publish it (once only).
The same “implied licence” may apply to user-generated content, but publishers should check if in doubt. It may appear that a picture has been sent in by an ordinary reader, when in fact it has been taken by a professional who expects payment if it is used. Does the person submitting it even own the copyright?
Moral rights also include someone’s right not to be identified as the creator of a work (if they didn’t create it).
A cautionary tale: the Penlee lifeboat disaster
Eight lifeboatmen from Cornwall were killed going to the aid of a striken tanker in a terrible storm. Freelance photographer Andrew Besley happened to have taken a picture of the lifeboat only days before. But to get the pictures to the world’s media before the internet age, he had to get them to a freelance news agency in Exeter, which had a picture wire transmitter. The agency paid him a paltry amount, saying it had sold few copies; in fact, the pictures had been sold around the world. It claimed to have lost the negative. Some years later, the agency was sold, and the new owner found Andrew’s negative. After years of fighting, Andrew Besley won massive damages and a judge called the cheating agency owner a thief.
Read the anniversary feature in the Mirror here
The picture is here (and if you want to use it, you must pay)
Read the article on the outcome here (from The Journalist)
“Infringement of copyright has long been acknowledged as an act of theft”, says an opinion piece in the Digital Journal. Gloomily, it concludes that chasing copyright infringement takes determination or wealth, and mainly benefits lawyers.
But staff journalists can minimise the damage by acting honourably towards their freelance colleagues.