A Cautionary Tale
- November 15, 2014
Bear with me readers on what is an unusual and longish post, because I really think that this is something that needs a public airing. The tale begins on Thursday morning when I was sitting at my desk and received the following comment on a blogpost which I posted on April 11 last year, entitled ‘Thatcher’s Golden Years: remembering the ‘Battle of the Beanfield’, from someone called John Harris:
Great picture of the mounted police attack – who took it Matt?
A quick bit of research would tell you it is a very famous picture from the miners strike 1984/1985 and nothing to do with the Battle of the Beanfield…I own the copyright in this photograph, and you have neither sought nor obtained my permission to publish it. Accordingly, you have infringed my copyright under the terms of the 1988 Copyright, Designs and Patents Act.
As a journalist and author your infringement is flagrant. You have also exposed me to further loss. Have you published it in any other form?
Please give me your address so I can invoice you accordingly, and we can bring this matter to a speedy conclusion. Please confirm you have removed my picture and destroyed any copies of it you have made.
I love that ‘kind regards’, don’t you? A few minutes research proved that Harris was right. The picture was taken by him, and it was a picture of the miners’ strike – something that was immediately obvious when I saw the picture outside the ‘beanfield’ cluster where I had first encountered it. I was nevertheless shocked by the tone of the email, with its suggestion of a ‘flagrant’ infringement of copyright and also by the demand that I should be invoiced.
I have never knowingly infringed anyone’s copyright and did not realise that including a photo that was readily available on the Internet could be regarded as such. I therefore rang Harris up, since his phone number was included in the email, and tried to explain to him that I had made an honest mistake. No chance. He immediately accused me of being ‘aggressive’ and said that ignorance was ‘no excuse’ and that I was ‘wasting his time’, before hanging up. I then wrote him another email, in which I denied that I had been aggressive, and suggested that Mr Harris’s ‘ threatening email…was far more aggressive than anything that I said.’
I told Harris:
[stextbox id=”alert”]The mistake in the image was clearly mine, and I have removed it and added a disclaimer. I do not understand why, when you realized the image was on my website, you didn”t simply inform me what it was and tell me to remove it. Had you done so, I would have reacted immediately, as I have now. I”d like to point out that my blog is not a commercial activity and that I would never in a million years use anybody else”s work for profit. [/stextbox]
I also wrote:
[stextbox id=”alert”]Of course I haven”t published it in “any other form”. It was merely there to illustrate a piece on the evils of Thatcherism, something that you yourself once powerfully photographed. Given these circumstances I simply don”t understand why you have taken the line you have, and why you appear to be so intent on taking me to the cleaners. Is it because you don”t like my political views as expressed in the blog? Is it a question of principle? Or do you simply regard me as a “journalist and author” and therefore who might be able to pay you?.[/stextbox]
Regarding the principle, I argued:
[stextbox id=”alert”]You say that ignorance is no “excuse” in legal terms. Maybe, maybe not. But it certainly ought to be in ethical and moral terms, particularly between individuals who at least at one time were singing from the same political hymn sheet. I myself have often allowed other people to use my work for free when it was for causes that I agreed with, and if I found out that they were doing so without my knowledge I would simply ask them to remove it.
I hope therefore, that you will do the same, and be content to let the matter rest at that.
Harris was not content to let the matter rest at that. Hardly had I sent the email than I received this:
[stextbox id=”alert”]Dear Matt,
I’m surprised you have phoned in such an aggressive fashion, it was most upsetting. A more apologetic tone would have been more appropriate, I’d not asked you to use my picture you know.
At this point it is really important to deal with this in a quick, timely and helpful manner please. You really cannot assume that just because you “found it on the internet” that you have permission to use others work to promote your own writing. [/stextbox]
As far I was concerned this was the classic response of the coward-bully. It was apparently ok for Mr Harris to pretend to be a curious reader. Ok to threaten me with legal action. But it was not ok to question any of this. As for the accusation that I used others work to promote my writing, this was a complete misrepresentation of my own motives in using the photograph, not to mention a wild exaggeration of the commercial impact of my blog.
By this time it was clear to me that I was talking to someone who was either tonedeaf or determined to misrepresent anything I had to say. I nevertheless tried once again, and sent this reply:
[stextbox id=”alert”]Dear John,
You will have seen the email that I just sent you. I still do not understand why you thought I was aggressive, and I”m sorry that I upset you. That was not my intention. Misunderstandings can easily take place on the phone especially when emotions are heated. Of course I am sorry that I used your picture, but you should understand that it was a genuine error, not a deliberate attempt to exploit anybody or use anybody”s work for my own benefit something that I have never done and never would do.
But I genuinely wasn”t aware that posting photos on the Internet was a breach of copyright, and as you see from the image I sent you, there wasn”t an obvious name in any case. Obviously I will not assume that I can use photos in the future, but the images I used were not intended to “promote my writing” but to enhance the political points I was trying to make.
I hope that you can accept my apologies.
Mr Harris did not accept my apologies. Instead he sent this:
Without prejudice save as to costs
I didn’t call you, you called me and immediately started saying that it was “unfair” that you couldn’t use my work for free which is why I really didn’t want to listen to you I’m afraid! It really is utter rubbish. What is unfair is 1) that you have used my image in this way, 2) that you are wasting my time with long emails about it, and 3) what would be really unfair would be if those diligent in arranging licensing & use in the correct way pay, whilst those using my image without license got away with paying nothing at all.
For your information the reason I saw your infringement was because you have been quoted as the source for a further and even more serious infringement by a third party in a hardback book who has repeated your mislabelling etc. & who appears to even claim copyright. Non bylined/non credited & mislabeled use has exactly that “knock on” effect… I don’t want to be dealing with any of it but have a responsibility to myself and others to do so.
I don’t like your “at least at one time singing from the same political hymn sheet” as if my standing up for my rights is evidence of my “selling out” – that is a cheap shot and untrue. That is the second time you have impugned my integrity. Furthermore, whether I charge for use for causes I agree with or not is at my discretion not yours.
I haven’t said anything about “taking you to the cleaners” for your use, albeit one which is clearly promoting your publishing work – and indeed all of your books do look very interesting. I am correct in the terms I use, infringement by someone who is in publishing/journalism/business will be held as “flagrant” in law and I may be entitled to claim further damages in this & other respects.
I require your contact details by return. In the interests of resolving this matter quickly and with good will for both of us I am, at this stage, willing to make a without prejudice offer to waive my rights to damages from you with respect to your breach for a payment of £120 incl VAT, provided that you accept this offer in writing within the next 7 days and provided that such sum is received on my account within the next 14 days. That is a very kind offer on my part. This does not grant any license to use the image.
Should I not receive notification of acceptance of this offer within the period described above and subsequent payment of our invoice I shall pass the matter into other hands. If I have to take this claim further, I reserve by right to add other losses resulting from the breach, the costs of lawyers’ fees, court fees, and other expenses will also be added to the cost of the claim. There is now a court set up especially for this purpose.
At no stage did I ever say that it was ‘unfair’ that I could use not Harris’s work for free. This was a complete misrepresentation. Nor do I have any idea what ‘third party’ he is referring to. What I was trying to suggest that a) I had not profited from Harris’s work nor attempted to do so and b) that it was not necessary to force me to pay for what was essentially an honest mistake.
I did consider ignoring his threats, and I received various opinions suggesting that I should not give in to them, and that a court would agree that I acted in good faith. But I have been sued before, and the risks to my family were too great if everything went pearshaped, so I was forced to accept his ‘kind offer.’
And that readers, concludes and ugly, nasty little tale which leaves a bitter taste in my mouth. So writers and bloggers should take care. Because just because something is on the Internet doesn’t mean that it is public property, and there will always be someone out there willing to use the law as an instrument of extorsion, regardless of whether you acted in error or with malicious intent.
And I can’t help wondering at the bizarre irony in which a writer denouncing one of the most savage episodes of police brutality during the Thatcher era should have invited such a ruthless response from a photographer who once took pictures denouncing another. Harris can proclaim his ‘rights’ all he likes, but he had other means of upholding them, and I am disgusted and appalled that he didn’t take them, and chose instead to target me as if I were some kind of thief.