January 2006


Generosity or stupidity?

SENDING MOBILE phone pictures and video (or other material) to the BBC, commercial TV stations or the newspapers may seem like a great idea, but the way the law and the industry stand in 2006, someone who does could be letting themselves in for far more than they expected.

Wanting to share experiences with others is admirable, but if those in the middle - people and organizations - who distribute that material are going to make money from your work, shouldn't the rewards be split equitably?

Also, lawyers working for media organizations had, during 2005, drafted terms and conditions which were so good at protecting their clients, that all the risks and liabilities were being placed with altruistic individuals wanting to share their work. Such generosity, some have argued, should not be exploited this way.

In 2006, the BBC said:

Terms and conditions
If you submit an image, you do so in accordance with the BBC's Terms and Conditions.

In contributing to BBC News you agree to grant us a royalty-free, non-exclusive licence to publish and otherwise use the material in any way that we want, and in any media worldwide. This may include the transmission of the material by our overseas partners; these are all reputable foreign news broadcasters who are prohibited from altering the material in any way or making it available to other UK broadcasters or to the print media. (See the Terms and Conditions for the full terms of our rights.)

It's important to note, however, that you still own the copyright to everything you contribute to BBC News and that if your image and/or video is accepted, we will endeavour to publish your name alongside it on the BBC News website. Please note that due to operational reasons this accreditation will probably not be possible with video. The BBC cannot guarantee that all pictures and/or video will be used and we reserve the right to edit your comments. At no time should you endanger yourself or others, take any unnecessary risks or infringe any laws.

The BBC doesn't take copyright itself from a creator, but these terms and conditions undermine its value very significantly indeed.

The BBC's principal UK competitors, the commercial broadcaster ITV plc, said very much the same, but more pertinently:

By sending us your video footage/photographs /audio you agree we can broadcast, publish and edit the material and pass it onto others for similar use in any media worldwide, without any payment being due to you. Please do not submit your contribution unless you accept this.

However, the most stringent clauses were expected from The Telegraph Group.

When these were revealed early in December 2005, the publisher was accused of in 'highway robbery' in Press Gazette.

Ironically, right beside the longer report was a brief paragraph about how the Daily Mirror had been forced to apologise and pay £15,000 damages after using a wedding photograph to illustrate and article about infidelity and how lawyers were still seeking costs.

Under the terms and conditions stated by many publishers and broadcasters, it seems that individual witness contributors could have been faced with all the liabilities of similar incidents.

Press Gazette reports the Telegraph group's approach next to a story about the implications of using images inappropriately.

The Mirror did publish an apology on its website, but this was not dated.

The apology said:

"KATE DUXBURY - AN APOLOGY

ON Friday, July 22, we published a wedding photograph (shown above) of Kate Duxbury and her husband, Lance Corporal Paul Duxbury, to illustrate the Letter of the Day ....

We wish to make clear that there is no connection whatsoever between Kate Duxbury and the personal circumstances described in the letter ....

We apologise to Kate and to Lance Corporal Duxbury for any distress or embarrassment caused by our inadvertent use of this picture, supplied to us by an agency."

The case was handled by Carter Ruck, a firm of lawyers familiar to readers of Private Eye.

In a Code of Practice drafted for the National Union of Journalists, it was proposed that publishers and broadcasters should accept liability for images and any other material from the time that they, or those working on their behalf, decided to use such material.

Freelance journalists had, by 2005, long been battling against contracts which demanded that they should guarantee their material as being 100 per cent accurate in perpetuity without, for example, any acknowledgment whatsoever that scientific knowledge is ever-increasing, and potentially changing by the hour, if not the day. Witness contributors should not - in good faith - be expected to make similar guarantees.

Also, no contributor should be expected to pay for the implications of decisions taken by publishers or anyone working in their name.

Scoopt
Although the approach adopted by Scoopt has been generally welcomed by photographers belonging to the NUJ.

However, in a section entitled 'Your Works', the site's Terms and Conditions (on Sunday January 22,2 2006) still said:

You agree and undertake that you will not submit to Scoopt any Works that:
(a) is unlawful or which gives rise to civil or criminal liability;
(b) infringes upon the intellectual property rights of any third party.

Speaking in January 2006, Scoopt founder Kyle McRae said that he made sure that publishers accepted liabilities properly, but he did demand full disclosure from his suppliers about how and when a photograph had been taken, if necessary putting photographer and news organisation in direct touch with one another so the accuracy and veracity of images could be fully checked.

Scoopt, he said, rejects anything with an overtly political slant, or which cannot be substantiated, such as some material from Iraq and images which look too much as if they have been staged.

As the incident with the Daily Mirror illustrates, giving such undertakings are - in reality - impossible.

Obviously each and every one of us has to decide for ourselves whether we accept such liabilities, but does taking such risks in return for fees which are far from certain make sense? The question has to be asked.